Town of Vernon et al. v. LLC (2013)

MEMORANDUM OF DECISION

The town of Vernon, through its building official and fire marshal, applies for a temporary injunction in this action to enforce applicable safety provisions of the building and fire codes and abate hazards created by a vacant, former textile mill complex of buildings, known as the Amerbelle Mill property.

Surprisingly, unlike the situation governing alleged zoning ordinance violations, there appears to be no statutory provision which expressly confers upon a municipality the right to seek injunctive relief to remedy building or fire code violations.   However, General Statutes § 7–148(c)(1)(A) vests municipalities with the power to institute legal actions generally.   Also, § 7–148(c)(4)(B) authorizes a town to “do all other things necessary or desirable for the protection of the municipality from fire”;  § 7–148(c)(7)(A)(ii) empowers a town to “regulate the mode of using any building when such regulations seem expedient for the purpose of promoting the safety ․ of the inhabitants”;  § 7–148(c)(7)(E) directs towns to abate nuisances and their causes and “all things detrimental to the health ․ safety [, and] welfare of its inhabitants”;  and § 7–148(c)(7)(G)(xiii) allows towns to enforce sanitary or other similar regulations.

Furthermore, General Statutes § 29–253(a) dictates that the state building code “shall be the building code for all towns ․” The local building official has the duty to enforce the building code, General Statutes § 29–260;  and require compliance regarding “alteration, repair, removal, demolition, ․ use, accessibility, occupancy and maintenance of buildings and structures,” General Statutes § 29–261(b).  Section 29–261(d) gives the building official the right to enter any commercial building between nine a.m. and five p.m. or for emergencies.  General Statutes §§ 29–302, 29–305(b) and (d), 29–306(a), and 29–310(b) confer comparable powers and responsibilities upon local fire marshals.

The court concludes that the town of Vernon, through these officials, has the right to seek a temporary injunction with respect to alleged building and fire code violations within the town.  “A temporary injunction is a preliminary order of court, granted at the outset or during the pendency of an action, forbidding the performance of the threatened acts described ․ until the rights of the parties ․ shall have been finally determined by the court.”   Deming v. Bradstreet, 85 Conn. 650, 659 (1912).   The primary purpose of a temporary injunction is to maintain the status quo until the rights of the various parties can be sorted out, after a hearing on the merits.  Clinton v. Middlesex Assurance Co., 37 Conn.App. 269, 279 (1995).

In order for the court to issue a temporary injunction, the movants must establish (1) a reasonable probability of success on the merits at a final hearing;  (2) irreparable injury unless the injunction is granted;  and (3) no adequate remedy at law.  Covenant Radio Corp. v. Ten Eighty Corp., 35 Conn.Sup. 1, 3 (1977).   If irreparable injury is demonstrated the trial court ought to issue the temporary injunction, unless it is clear that the plaintiff will not prevail at the trial on the merits.  Olcott v. Pendleton, 128 Conn. 292, 295 (1941).

The evidence adduced at the hearing on this application shows that Bridgepoint Funding Alliance, LLC acquired ownership of the Amerbelle Mill complex on October 8, 2012.   The defunct factory is located in the Rockville section of Vernon, and the buildings are mostly constructed of heavy timbers and masonry, some of which are more than a century old.   Within the mill confines is a dam which controls the flow of the Hockanum River.

The buildings are vacant and have been vandalized occasionally.   Vagrants sometimes occupy these buildings.   Access doors and windows have been left open or removed exposing portions of the mill to more vandalism and the weather.   Metal flashing from the roof has been removed which allows water to infiltrate and damage the interior.   The rotting of wood and deterioration of structural elements makes collapse of an entire building a real possibility.   Collapse of the building adjacent to the dam may create unintended impoundment of river water and poses a danger of flooding to neighboring properties.   Such flooding due to excess precipitation has occurred in the past unless the dam is carefully monitored.

The building official and fire marshal have inspected the premises and obtained a search warrant for that purpose.   They observed several safety violations of the building and fire codes, and both agents have issued cease and desist orders and remediation orders.   Interior portions of flooring are missing or damaged.   Required railings have been removed.   The town has already spent over $63,000 securing the perimeter to thwart intruders.

Of particular concern is the operability of the existing sprinkler system.   Because the mill now is unheated, the sprinkler system had to be drained and winterized.   Special fire hose connectors were installed to allow rapid reactivation in the event of a winter fire.   However, these connections are now missing.   Unless these devices are replaced and protected from removal, the risk of fire quickly engulfing the old structure and spreading to other buildings in the vicinity is unacceptably high.

The defendants are the LLC, which owns the property, and Phillip C. Weatherspoon, the sole member of the LLC and the person with whom the town officials have dealt and who has hired contractors to engage in salvage and repair work at the mill.   The defendants do not contest the claims of code violations described above.   However, Weatherspoon contends that, because the LLC owns the property, he cannot personally be ordered by the court to engage in or refrain from engaging in any conduct with respect to the code violation.   The court rejects this contention.

Ultimately, a company or other legal organization, can only act through human agency.   If a court possesses the power to enjoin conduct, it must exercise that power by issuing binding orders to compel key individuals in the organization to comply.   Nonowners can be subject to nonmonetary judicial orders, see Papa v. New Haven Federation of Teachers, 186 Conn. 725, 727–30 (1982);  Southington v. DeMella, 10 Conn.App. 581, 582–83 (1987);  and Gaudio v. Gaudio, 23 Conn.App. 287, 300 (1990).

The applicant has demonstrated a reasonable probability of success at a final hearing;  irreparable injury unless action is taken to preserve and protect the property from further deterioration and increased hazards to the safety of the public;  and no adequate remedy at law exists.   The court issues the temporary injunction, and the defendants are ordered to comply with the following mandates:

1. Within thirty days, the defendants shall secure the property according to HUD standards.   Securing said property includes but is not limited to the following:

a.  Board windows on first and second floor and board bay doors.

b. Lock all doors;

c. Install “No Trespassing” signs throughout the property on fences and exterior walls;

d. Send a letter to the Vernon police department requesting that the police department arrest any trespassers on the property.

2. The defendants shall cease and desist from removing any fixtures and structures from the property, without the prior written approval of the Town Fire Marshal or Building Official.

3. The plaintiff, Town of Vernon and its Public Safety Officials, including but not limited to, the Vernon Chief of Police, Fire Marshal and Building Official are authorized to enforce a No–Trespassing Order preventing people, other than the defendants and their agents and employees, from entering the property and further authorizing, the Vernon Police Department the authority to arrest trespassers.

4. The defendants, their agents, and employees shall notify and receive approval from the plaintiff, Fire Marshal, Raymond A. Walker, Jr., and plaintiff, Building Official, Harry Dan Boyko prior to entering the property.

5. The defendants shall remove all combustible materials in and around property, as directed by the Town Fire Marshal.

6. Defendants shall obtain the proper permits for any further work on the premises and shall allow the Town of Vernon to observe such work.

7. The defendants shall have an “Approved Fire Watch” established whenever work is done and said fire watch shall be maintained from the start of work until at least one hour after work has stopped.

8. All work done on the premises must be done during regularly scheduled days and hours that the Town Hall of the Town of Vernon is open.

9. The defendants shall have Paper Mill Pond Dam inspected, cleaned, maintained and repaired, if necessary, as per DEEP directives.

10. The defendants shall allow the plaintiff, Town of Vernon and its officials access to the dam and its control mechanisms at all times with or without notice to the defendants.

11. If the defendants do not secure said property as outlined in paragraph two of this order, the plaintiff, Town of Vernon, is authorized to secure the property and place a lien on the property for the costs and expenses by its employees, agents and other contractors to perform the work necessary to secure the property.

12. The Town of Vernon is authorized to conduct such studies and evaluations of the property as its officials deem necessary including but not limited to the dam, the structure, and security.

13. The Town of Vernon may place a lien on the property for costs of said studies.

14. The defendants shall keep the Fire Marshal, Building Officials and Chief of Police informed of defendant, Philip C. Weatherspoon's contact information so that if an emergency situation arises he will be available.

15. The defendant, Philip C. Weatherspoon shall provide at least two additional emergency contact persons that will be authorized to address issues that arise on an emergency basis.

16. The defendants may not transfer the property to another person or entity without notice to and written consent of the Town of Vernon, which will not be unreasonably withheld.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.