Juliet Leeming v. John Ames (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, (# 106)

FACTS

On October 13, 2011, the defendant, John Ames, filed a motion to strike the complaint of the plaintiff, Juliet Leeming.   The two-count verified complaint alleges the following facts.   The plaintiff is the zoning official of the town of North Stonington and the defendant is the owner of real property located at 659 Pendleton Hill Road, North Stonington.   The defendant is and has been conducting activities at his property and/or has allowed conditions to exist that violate sections of North Stonington's zoning regulations, including §§ 203 and 1513.  “The illegal activities and conditions include the accumulation and storage of waste, scrap material, debris, abandoned machinery, junk and other similar unsightly material.”   On January 6, 2011, the plaintiff issued an abatement order, directing the defendant to cease and desist all zoning violations but the defendant has not complied.   Count one alleges zoning violations and count two alleges willful violations of zoning regulations.   Pursuant to General Statutes § 8–12, the plaintiff is seeking temporary and permanent injunctions and authorization to record orders of the court on the land records.   The plaintiff filed an objection to the defendant's motion to strike and a memorandum of law in support of her objection on November 10, 2011.   The matter was heard at short calendar on November 21, 2011.   The court trial is set for December 13, 2011.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id., 252.

The defendant's motion to strike and memorandum of law set forth essentially three arguments as to why the plaintiff's complaint is legally insufficient.¹  The court will address each argument in turn.

First, the defendant argues that the plaintiff is using General Statutes § 8–12 to seek the enforcement of North Stonington's zoning ordinances but the complaint is legally deficient.   In asserting the deficiency of the complaint, the defendant argues that the plaintiff's factual conclusions regarding the defendant's property ownership are deficient and inadmissible.   The plaintiff counters that her complaint sets forth all of the required factual allegations for the relief sought and that she has sufficiently alleged that the defendant is the owner of the property in question.

In the present case, the North Stonington zoning regulations expressly prohibit junk yards and prohibit the outdoor storage of junk and debris.   See North Stonington Zoning Regs., §§ 203(B) and 1513.3.   Viewing the complaint in the light most favorable to sustaining its legal sufficiency, the plaintiff has alleged that there are applicable zoning regulations in the town of North Stonington and the defendant is violating the above-referenced regulations by accumulating and storing junk and debris on his property.   Moreover, the plaintiff has alleged that the defendant is the owner of the property and identified the property by street address and by the assessor's number, PIN:  72–8923.   The court must take the allegation of ownership as admitted and the plaintiff is not required to produce a legal deed and legal description of the property or an affidavit by the clerk of deeds in order to allege ownership as the defendant argues.   Accordingly, the court denies the defendant's motion to strike the complaint as legally deficient because the defendant's ownership of the property is sufficiently alleged.

Second, the defendant argues that the complaint is legally deficient because he cannot comply with the mandates of the ordinances without more precise guidelines.   The defendant argues that both the definition of junk and an order to cease and desist of all zoning violations are overbroad and vague.   The plaintiff counters that her pleading is sufficient to inform the defendant of the specific regulations that he is charged with and the evidence that will be utilized to prove the violation.

In the present case, the defendant cites no authority in support of his arguments to strike based on overbreadth and vagueness.   Rather the defendant supports his assertions of overbreadth and vagueness by arguing that his items are not within his reading of the definition of junk and that the plaintiff's failure to list what exactly is required for compliance would necessitate the removal of all items not previously stipulated to in prior suits from the defendant's yard.   These factually based arguments do not attack the legal sufficiency of the complaint and as addressed above the plaintiff has sufficiently pleaded allegations of zoning violations to survive a motion to strike.   Consequently, this portion of the defendant's motion to strike is denied.

Third, the defendant argues that the request for a temporary and permanent injunction is legally insufficient because the plaintiff has not established any facts that irreparable harm, which cannot be remedied by other means, will result.   The plaintiff counters that she is relieved of the normal burden of establishing irreparable harm and lack of an adequate remedy at law when a statutory violation is alleged.

“In seeking an injunction pursuant to § 8–12, the town is relieved of the normal burden of proving irreparable harm and the lack of an adequate remedy at law because § 8–12 by implication assumes that no adequate alternative remedy exists and that the injury was irreparable ․ The town need prove only that the statutes or ordinances were violated.”  (Citation omitted.)   Gelinas v. West Hartford, 225 Conn. 575, 588, 626 A.2d 259 (1993).   Although, “[i]t is well settled Connecticut law that a zoning enforcement officer need not allege nor prove irreparable harm in order to obtain a permanent injunction enforcing applicable zoning regulations ․ [T]here is a split of authority in Superior Court decisions as to whether or not a showing of irreparable harm by a zoning enforcement officer is a condition precedent to the issuance of a temporary injunction in a § 8–12 enforcement proceeding.”  (Citation omitted.)  Sorrentino v. Ives, Superior Court, judicial district of Windham at Putnam, Docket No. CV 09 5005282 (January 20, 2010, Dos Santos, J.) (49 Conn. L. Rptr. 325, 328).

At least one trial court saw no reason why the rationale would differ simply because the motion requests a temporary rather than a permanent injunction.   See Kosilla v. Collins Group, Inc., Superior Court, judicial district at Hartford, Docket No. CV 00 08014171 (November 29, 2000, Berger, J.) (29 Conn L. Rptr. 11).   The majority of trial courts have found, however, that a zoning enforcement officer or a municipality is required to plead irreparable harm when seeking a temporary injunction.   See Sorrentino v. Ives, supra, 49 Conn. L. Rptr. 325.   When addressing a temporary injunction, which may be granted prior to a full hearing on the merits, some trial courts have focused on the opportunity for abuse of the defendants' rights because of a lack of an immediate appeal and the possibility that a temporary injunction may moot the need for permanent relief.   See Kwiatkoski v. Johnson, Superior Court, judicial district of Fairfield, Docket No. CV 93 030732 (October 27, 1993, Vertefeuille, J.) (10 Conn. L. Rptr. 311).

Here, the plaintiff is seeking both temporary and permanent injunctions.   In regards to her request for a permanent injunction, the plaintiff has sufficiently pleaded violations of zoning ordinances, which is all that is required.   In regards to her request for a temporary injunction, this court agrees with the majority of cases that require the zoning enforcement officer to plead irreparable harm and lack of an adequate remedy at law.   Therefore, the defendant's motion to strike is denied as to the request for a permanent injunction and granted as to the request for a temporary injunction.

CONCLUSION

For the foregoing reasons, the defendant's motion to strike is granted in part and denied in part.

Martin, J.

FOOTNOTES

FN1. At short calendar, the defendant conceded his argument regarding the bond requirement of General Statutes § 52–472..  FN1. At short calendar, the defendant conceded his argument regarding the bond requirement of General Statutes § 52–472.

Martin, Robert A., J.