382 A.2d 1333 | Conn. Super. Ct. | 1977
The named plaintiff seeks to enjoin the defendant, Reduction Associates, Inc., from using its property in Colchester as a waste disposal facility for the disposal of unbaled waste material transported *178 from outside the town limits of Colchester. It is undisputed that unbaled waste material from the towns of West Hartford, New Haven, Old Saybrook and Milford is being transported to and disposed of at the Colchester facility. The basis of the plaintiff's request for injunctive relief is that Reduction Associates, Inc., is dumping and depositing unbaled waste in violation of the Colchester zoning regulations. The defendant claims that Reduction Associates, Inc., has a permit from the state department of environmental protection to dump and dispose of unbaled waste on its property and that the request for injunctive relief should therefore be denied.
On November 30, 1977, after hearing arguments of counsel, this court denied the plaintiff's application for a temporary injunction. On December 20, 1977, the court heard evidence on a similar application for a temporary injunction. This memorandum is the court's decision reached after hearing the evidence on December 20.
At the hearing on December 20 counsel explained to the court that the issues are complicated and numerous and that if evidence were presented on all the issues the trial could last for several weeks. It was therefore agreed by counsel to limit the evidence to two issues so that the court could make an early determination of whether a temporary injunction should issue. The issues before this court are as follows: (1) Were the zoning regulations of the town of Colchester preempted by the action of the state when it allowed the defendant, Reduction Associates, Inc., to dispose of unbaled waste on its property? (2) Would the plaintiff suffer irreparable harm if the temporary injunction were denied, and, if so, would that harm outweigh the harm suffered by opposing interests if the temporary injunction were granted? *179
The court finds the following facts in regard to the issue of preemption: The defendant, Reduction Associates, Inc., hereinafter referred to as Reduction, owns approximately 400 acres of land in the town of Colchester, which it bought from Andrew W. Bartlik, hereinafter Bartlik. Although the evidence presented in regard to the zone classification of Reduction's property was minimal, the court finds, for the purpose of this request for a temporary injunction, that the property is zoned as a residential agricultural zone.
Section 5.1 of the zoning regulations of the town of Colchester provides that land in a residential zone may be used for certain named uses and no others. It does not name sanitary landfill operations. Section 5.14 of the zoning regulations provides that the zoning commission "may permit as a special exception in accordance with Section 22 of these regulations a sanitary landfill area." Section 5.14.1 of the regulations provides that a "sanitary landfill area shall consist only of bulky waste and high density baled refuse."
In August of 1975 the town of Colchester and Bartlik applied to the department of environmental protection, hereinafter referred to as the DEP, for a permit to establish and operate a disposal area for baled waste on Bartlik's property in the town of Colchester. The permit was granted on December 19, 1975. On November 4, 1977, Reduction, having purchased the property from Bartlik, applied to the DEP for a modification of the permit so that it could receive unbaled solid waste on its property. On November 16, 1977, the DEP issued a modification of the original permit to allow the disposal of unbaled waste. On November 17, 1977, the zoning enforcement officer for the town of Colchester issued an order to Reduction to discontinue dumping unbaled waste on its property in violation of the *180 Colchester zoning regulations. Reduction has continued to receive and dispose of unbaled waste from the towns of West Hartford, New Haven, Old Saybrook and Milford.
The General Assembly has enacted a rather comprehensive state-wide solid waste management program, to be administered by the commissioner of environmental protection. General Statutes §§
Even prior to the passage of General Statutes §§ 19-524b, 19-524q and 19-524r,1 it had been recognized by the courts that solid waste management was a problem of state-wide magnitude. In Yaworski
v. Canterbury,
The fact that the present action is concerned with a zoning ordinance in contrast to a municipal ordinance is of no effect in considering whether it is void because the subject matter of the ordinance is exclusively one for state regulation. In Lauricella
v. Planning and Zoning Board of Appeals of theTown of Greenwich,
"The state has pre-empted all authority over our tidal wetlands. The zoning regulations of the town of Greenwich pertaining to its control of tidal wetlands and regulated activity thereon ... are ... void and of no legal effect."
In Southern Ocean Landfill, Inc. v. Mayor andCouncil of the Township of Ocean,
The case of Jamens v. Avon Township,
The General Assembly has seen fit to exercise its own power of regulation of solid waste management in this state. To be sure, the General Assembly may allow localities to make additional provisions and otherwise further to control the disposal of solid waste located within their boundaries. The plaintiff claims that under §
Section 19-524n provides that "[e]ach municipal authority shall make provisions for the safe and sanitary disposal of all solid wastes which are generated within its boundaries ...." Here, again, however, any such provisions must not be in conflict with the state's power to regulate solid waste management.
The plaintiff relies on that portion of § 19-524n which provides: "If arrangements are made for transportation of solid wastes to another municipality or out of the state, the provisions of section 7-161 and section 7-162 shall be complied with." Section 7-161 provides: "No plant for such treatment shall be established or operated outside of such town, city or borough until application for a permit to establish and operate the same has been filed with a commission ... of the town in which such plant is to be located and such permit granted by such commission ...." In a very recent decision, however, the Supreme Court held that § 7-161 is unconstitutional. Thus, the attempted delegation of such power is a nullity. New Milford v. SCAServices of Connecticut, Inc.,
Thus, while towns may regulate the use of land within their borders under §
Further, inasmuch as § 7-161 of the General Statutes is now a nullity, it would appear that the state has exclusive jurisdiction over any regulations concerned with the disposal of solid waste being transported between towns.
The court therefore holds that the state's granting of the permit to Reduction to dispose of unbaled waste preempts the Colchester zoning regulation which disallows the disposal of unbaled waste within its borders.
Even if the court did not hold that the state's action had preempted the Colchester zoning ordinance, the court finds that it should deny the request for a temporary injunction. In deciding the application we must proceed according to familiar principles of equity with respect to temporary injunctions designed essentially to preserve the status quo until adjudication can be had upon the merits. The matter is one for the wise discretion of the court, the usual rule being that a plaintiff is not entitled to this extraordinary and peremptory relief unless he shows that otherwise he would suffer irreparable loss. Further, there must be a balancing of interests, so that a plaintiff, before his right has been established at trial, cannot cause loss to opposing interests far exceeding any that he may suffer. Penn Central Co. v. Public UtilitiesCommission of the State of Connecticut,
The town presented no evidence that it is suffering irreparable damage as the result of the current landfill operation. The town's own expert *186 witness, Edward Kant, testified to the effect that a properly engineered and properly operated landfill, whether involving unbaled or baled solid waste, would preclude environmental hazards such as a vector problem. The town presented no testimony by any expert familiar with the subject operation and how it is currently being conducted. On the other hand, Joseph Boren, director of the solid waste unit of the department of environmental protection, and John England, an environmental analyst employed by that department, both testified to the extensive research into and review of the environmental considerations connected with the subject operation and their conclusions that it does not present any adverse hazardous environmental impact.
In contrast to the lack of irreparable harm demonstrated by the town, both the state of Connecticut and Reduction demonstrated the drastic consequences which would result to each of them should a temporary injunction issue. The municipalities whose solid waste is being deposited in Colchester, i.e., New Haven, West Hartford, Milford and Old Saybrook, would be faced with an immediate crisis with no foreseeable realistic resolution. The testimony of Lawrence Tryon, general manager of Reduction, leads only to the conclusion that the issuance of a temporary injunction prohibiting the disposal of the solid waste from the above-named municipalities at Reduction's own landfill would result in the economic death of the company.
The request for a temporary injunction is denied.