Michael Bauer et al. v. Thomas Beard (2011)

MEMORANDUM OF DECISION

This action is between neighbors who own adjacent properties.   The plaintiffs, Michael and Teresa Bauer, have applied for a temporary injunction against the defendant, Thomas Beard.   The plaintiffs request a temporary injunction prohibiting the defendant from conducting activities on his property that (1) are in the nature of commercial businesses in violation of the zoning laws of the town of Monroe;  and (2) constitute a private nuisance.¹  The plaintiffs claim that the defendant's activities on his land violate the zoning laws because (1) they do not fall within the permitted farm use of the property;  and (2) the defendant has numerous commercially registered vehicles on his property that exceed one ton in capacity.   The defendant admits that he has vehicles on his property that exceed the one ton capacity in violation of the zoning laws.   The defendant contests the plaintiffs' assertion that his activities do not fall within the permitted use of a farm within the regulations, and that his activities constitute a private nuisance.   For the reasons hereinafter discussed, the plaintiffs' application for a temporary injunction is granted.

The court finds the following facts credibly proven.   The plaintiffs own, and reside at, real property located at 478 Fan Hill Road. The defendant owns, and resides at, real property located at 462 Fan Hill Road. The plaintiffs' property and the defendant's property are partially abutting parcels.   The plaintiffs purchased their property in April 2005.   The defendant's father originally purchased the Fan Hill Road property in 1965, and the defendant has owned the property since June 2003.²  The properties are located in a Residential and Farming District C as set forth in Article III of the Zoning Regulations of the Town of Monroe.³

The defendant's father operated a farm on the property.   His father “used to raise beef cattle, cows, veal calves [and] pigs,” and “[u]sed to have trailer loads of livestock come in three days a week.” ⁴  The defendant does not presently use his property for raising livestock, and there is no evidence that he has done so since he became the owner of the property.   He does keep two horses on the property and there is a barn.   When questioned by counsel for the plaintiffs as to what he is “farming at this time,” the defendant responded that he is “[d]oing farm loam” as he has been doing for all of his life.   The only evidence offered by the defendant that he is using his land for the purposes of farming relates solely to his production, sale and delivery of loam.

The defendant produces the loam at his property.   He gets the dirt, manure and leaves that he combines to produce the loam delivered to his property by dump trucks owned by others without cost to him.   The defendant also uses some manure from his property in the production of the loam.⁵  He sells and delivers about one thousand yards of loam a year.   He uses the commercially registered trucks located on his property to do so.   During at least one year since the time the defendant took title to the property he brought in a thousand yards of fill to produce the loam because he did not have any from which to produce it.

The defendant is also a snowplow subcontractor with the State of Connecticut.   Three commercially registered plow trucks located on the defendant's property are used by the defendant for his plowing business.

The defendant also operates an excavation business.   The defendant has performed excavation services throughout Connecticut and in New York and New Jersey.   He uses certain of the commercially registered trucks and equipment stored on his property for his excavation business.   Related to the business, the defendant is a subcontractor for Scotty's Enterprises, Inc., which is a refuse and demolition company.   The defendant testified that he acted as such a subcontractor a few months before the October hearing he was hired by the City of New Haven Housing Authority to demolish a shed.   He brought his backhoe to the site for that job.   On bigger jobs, the defendant has brought his hydraulic excavator.   Both pieces of equipment are parked on the defendant's property.

The defendant also operates a hauling business.   The defendant testified that he “still [does] hauling for hire” and that he uses certain of the commercially registered trucks and equipment located on his property for his hauling business.

The defendant also operates a scrap metal salvage business.   He uses certain of the commercially registered trucks and equipment located on his property for his salvage business.

It has been admitted by the defendant that the following vehicles were located on the his property at the time of the hearing:  three plow trucks;  four trailers;  truck tractor;  dump truck;  bulldozer;  bucket loader;  bucket loader;  John Deere tractor;  screener;  three backhoes;  loader backhoe;  bobcat;  site truck.⁶

The defendant has a commercial driver's license, and other required licenses for his various businesses, including a license from the Occupational Health and Safety Administration for mining and quarries, and a hazardous materials license.   He operates all of his various businesses from his property under the name Thomas Beard d/b/a TPB Contracting.

The court will initially address the plaintiffs' request for a temporary injunction claiming that the defendant's use of his property constitutes a violation of the zoning regulations of the town of Monroe.  “Though the primary responsibility for enforcing zoning regulations rests with the zoning commission, where a violation results in special damage to an individual, the injured party has a right to seek injunctive relief.”  Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128 (1975).  “It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter ․ Despite this principle ․ [a]ny person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another's land may seek injunctive relief restraining such violation [without exhausting administrative remedies].”  (Internal quotation marks omitted;  citations omitted.)  Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 230 (1987);  Granger v. A. Aiudi & Sons, 60 Conn.App. 36, 45, 758 A.2d 417 (2000).

The plaintiffs request temporary injunctive relief alleging that they have been specifically and materially damaged by the defendant's daily use of his land in violation of the town's zoning regulations.   More particularly, the plaintiffs contend that they have been specially harmed in the use and enjoyment of their property by the defendant's use of his various heavy equipment and trucks in the operation of his commercial businesses because of the resulting noise, dust, odors, vibrations and truck traffic.

“The standard for granting a temporary injunction is well settled.   In general a court may, in its discretion, exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law ․ A party seeking injunctive relief must demonstrate that:  (1) it has no adequate remedy at law;  (2) it will suffer irreparable harm without an injunction;  (3) it will likely prevail on the merits;  and (4) the balance of equities tips in its favor ․ The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation.   Moreover, [t]he 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.”  (Citations omitted;  internal quotation marks omitted.)  Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97–98, 10 A.3d 498 (2010).

Because the plaintiffs are individuals and not a municipality, “[i]t 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.”  Karl v. Alexandra Realty Corp., 179 Conn. 390, 401, 426 A.2d 784 (1980).

The balancing of the equities of the harm caused to one party or the other “involve[s] essentially the application of familiar equitable principles in the context of adjusting the rights of the parties during the pendency of litigation until a final determination on the merits.”  Griffin Hospital v. Commissions on Hospitals and Healthcare, 196 Conn. 451, 458, 493 A.2d 229 (1985).

The court will address each of the elements.   In deciding whether a temporary injunction should issue in the present action, the court must initially consider whether, under the circumstances, the plaintiffs have sustained irreparable harm and lack an adequate legal remedy.   In undertaking this analysis, the court finds that the better and weightier evidence in the present action establishes that the defendant is not operating a loam farm on his property as he claims, but is operating various commercial businesses in contravention of the zoning laws.   The defendant makes his living solely from the businesses.   His primary business is excavation, and he sells loam and top soil as part of that business.

At the request of the parties, the court made a site inspection of the property.   The inspection supports the court's conclusion that the defendant is not using his property for farming as permitted by the zoning regulations, but for his commercial businesses.   The defendant's property is approximately five acres.   The ranch style house that the defendant has lived in since his birth is situated at the front of the property abutting Fan Hill Road. The majority of the property is situated to the rear of the house.   The rear property has been basically clear cut and somewhat leveled, and its vast openness is visually striking.⁷  The land does not look like a farm, and the court did not see anything related to farming other than the two horses and the barn on the property.   For example, in addition to there not being any traditional farm animals on the property, there does not appear to be any traditional farm fruit, vegetables or flowers of any kind being grown on it.⁸  The court concludes that the defendant cleared his land solely to facilitate the operation of his various businesses, including the associated vehicles and heavy equipment stored on the property.⁹

The court finds based on the foregoing, that the plaintiffs have established that they suffered irreparable injury and lack an adequate remedy at law.   More particularly, the defendant's activities have caused, and continue to cause, the plaintiffs to unreasonably suffer in the use and enjoyment of their property from the noise, dust, odor and truck traffic directly caused to the defendant's operation of his businesses.   If a temporary injunction is not granted, then the resulting harm to the plaintiffs will continue to occur to their detriment.

In view of the foregoing, the plaintiffs have also established probable cause for their common-law nuisance claim.   The elements of a common-law nuisance claim are well established.  “To establish a nuisance four elements must be proven:  (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property;  (2) the danger created was a continuing one;  (3) the use of the land was unreasonable or unlawful;  (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages.”  Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35–36, 404 A.2d 889 (1978).

The plaintiffs have additionally demonstrated probable cause that defendant is conducting activities on the property in violation of Section 117–301 of the Zoning Regulations of the Town of Monroe to the extent that such activities do not constitute the permitted use of farming activities.   The activities are in the nature of an earth products business.

In balancing the equities, the court finds that the defendant has acted with careless disregard for the law embodied in the zoning regulations.   The court notes that the defendant's testimony that he is operating a loam farm belies the property true use as the defendant's place of commercial business.   The only purported farming that the defendant performed on the property was the production of loam, which the court has concluded is not farming under the circumstances of this action.   The defendant's testimony, viewed in the light of the evidence adduced at the hearing, stretches the limit of a reasonable reading of the applicable zoning regulations.

The defendant derives his income from his businesses, and the resulting harm to the defendant is self-evident.   However, the defendant failed to offer any evidence that he would be prevented from performing his various commercial enterprises if the activities on his property were to be prohibited.   For example, it may be, albeit inconvenient, that the defendant could lease property that would be suitable for the operation of his businesses.

In balancing the equities, the court concludes that the balance tips in favor of the plaintiff and the issuance of the temporary injunction.   The proven harm to the plaintiffs outweighs the harm to the defendant “by adjusting the rights of the parties during the pendency of the litigation until a final determination on the merits.”  Griffin Hospital v. Commissions on Hospitals and Healthcare, supra, 196 Conn. 458.

In view of the foregoing, the court orders that a temporary injunction issue without bond against the defendant as follows:

1.  The defendant is to immediately cease and desist, and is prohibited, from operating any commercial business on his property in violation of the Zoning Regulations of the Town of Monroe, including but not limited to (1) the acquisition, or production for sale or delivery, of loam or topsoil, including any of their components;  (2) an excavation business and any subcontracting businesses related thereto;  (3) a snowplowing business;  (4) a trucking and hauling business;  (5) a scrap metal salvage business;  and (6) a demolition business.

2. The defendant is to immediately cease and desist, and is prohibited, from parking or storing on his property any commercial vehicle that exceeds one ton capacity in violation of the Zoning Regulations of the Town of Monroe.

TYMA, J.

FOOTNOTES

FN1. The court ruled on the nuisance claim at the close of the hearing.   The court found that the plaintiffs failed at this stage of the proceedings to establish probable cause for the claim.   The court was mistaken in its ruling, and vacates its order.   The court made its ruling without having the benefit of watching the entire DVD submitted by the plaintiff into evidence (Plaintiff's Exhibit 11), and considering that evidence along with all of the other admitted evidence.   Now that the court has done so, it concludes, as hereinafter discussed, that the plaintiff has established probable cause for their nuisance claim.   The defendant's wrongful, year round operation of his various commercial businesses unreasonably interferes with the plaintiff's use and enjoyment of their property..  FN1. The court ruled on the nuisance claim at the close of the hearing.   The court found that the plaintiffs failed at this stage of the proceedings to establish probable cause for the claim.   The court was mistaken in its ruling, and vacates its order.   The court made its ruling without having the benefit of watching the entire DVD submitted by the plaintiff into evidence (Plaintiff's Exhibit 11), and considering that evidence along with all of the other admitted evidence.   Now that the court has done so, it concludes, as hereinafter discussed, that the plaintiff has established probable cause for their nuisance claim.   The defendant's wrongful, year round operation of his various commercial businesses unreasonably interferes with the plaintiff's use and enjoyment of their property.

FN2. The defendant has lived at the property for his entire life..  FN2. The defendant has lived at the property for his entire life.

FN3. Section 117–301, entitled “Permitted Uses,” provides in pertinent parts as follows:  “Land, buildings and other structures shall be used for one (1) or more of the following purposes:  B. Farms, nurseries and greenhouses ․ C. Roadside farm stands exclusively for the sale of farm produce grown on the premises.”.  FN3. Section 117–301, entitled “Permitted Uses,” provides in pertinent parts as follows:  “Land, buildings and other structures shall be used for one (1) or more of the following purposes:  B. Farms, nurseries and greenhouses ․ C. Roadside farm stands exclusively for the sale of farm produce grown on the premises.”

FN4. The defendant's father also raised “chickens, guinea hens, peacocks ․ [s]heep, goats.”.  FN4. The defendant's father also raised “chickens, guinea hens, peacocks ․ [s]heep, goats.”

FN5. The defendant testified that the manure on the property is the product of the livestock that his father kept on the property..  FN5. The defendant testified that the manure on the property is the product of the livestock that his father kept on the property.

FN6. The defendant admitted that the following vehicles listed on Plaintiff's Exhibit 2 are commercial registered vehicles on his property that exceed one ton capacity:  three plow trucks;  four trailers;  truck tractor;  dump truck;  bucket loader;  three backhoes;  loader backhoe and the site truck.   The plow trucks, trailers, tractor and dump truck are commercial registered vehicles.   Therefore, the court finds that the plaintiffs have demonstrated probable cause for their claim that the presence of those vehicles on the defendant's property violates Section 117–301(L)(2)(d)(3) of the Zoning Regulations of the Town of Monroe.   Additionally, the presence of these vehicles clearly compels the court's conclusion that the plaintiff has proven probable cause that the defendant is operating commercial businesses on his property in further violation of the Regulations..  FN6. The defendant admitted that the following vehicles listed on Plaintiff's Exhibit 2 are commercial registered vehicles on his property that exceed one ton capacity:  three plow trucks;  four trailers;  truck tractor;  dump truck;  bucket loader;  three backhoes;  loader backhoe and the site truck.   The plow trucks, trailers, tractor and dump truck are commercial registered vehicles.   Therefore, the court finds that the plaintiffs have demonstrated probable cause for their claim that the presence of those vehicles on the defendant's property violates Section 117–301(L)(2)(d)(3) of the Zoning Regulations of the Town of Monroe.   Additionally, the presence of these vehicles clearly compels the court's conclusion that the plaintiff has proven probable cause that the defendant is operating commercial businesses on his property in further violation of the Regulations.

FN7. It gives the impression of a mined stone quarry that has been significantly and permanently depleted of its natural resources..  FN7. It gives the impression of a mined stone quarry that has been significantly and permanently depleted of its natural resources.

FN8. Article XXVII of the Zoning Regulations of the Town of Monroe, which is a definitional section of the Regulations, provides that “[a] farm shall be defined as the principal use of a lot or parcel for the producing of agriculture, horticulture, floriculture, vegetable and fruit products of the soil for market and shall include fisheries and fish hatcheries, and the raising of domestic farm animals for market.   A dwelling for the resident farmer may be located on the lot or parcel.”   The defendant is not a legal resident loam farmer in a bucolic community where traditional farms are still common.   Rather, he is an illegal businessman operating from his property an excavation and other businesses involving the use of heavy machinery to the detriment of the plaintiffs and the surrounding neighborhood..  FN8. Article XXVII of the Zoning Regulations of the Town of Monroe, which is a definitional section of the Regulations, provides that “[a] farm shall be defined as the principal use of a lot or parcel for the producing of agriculture, horticulture, floriculture, vegetable and fruit products of the soil for market and shall include fisheries and fish hatcheries, and the raising of domestic farm animals for market.   A dwelling for the resident farmer may be located on the lot or parcel.”   The defendant is not a legal resident loam farmer in a bucolic community where traditional farms are still common.   Rather, he is an illegal businessman operating from his property an excavation and other businesses involving the use of heavy machinery to the detriment of the plaintiffs and the surrounding neighborhood.

FN9. The court finds the defendant's contention that “he is in the process of changing the contour of his land in order to make it suitable for bring” back cattle to the property lacks credibility..  FN9. The court finds the defendant's contention that “he is in the process of changing the contour of his land in order to make it suitable for bring” back cattle to the property lacks credibility.

Tyma, Theodore R., J.