179 Conn. 390 | Conn. | 1980
The present actions were commenced by several property owners seeking to prevent the construction and occupancy of a single family residence on a neighboring 6.338 acre tract of land. The first cause of action was brought by the plaintiffs, John S. and Andrea B. Karls, against the Alexandra Realty Corporation (Alexandra), Richard Ladestro, who is the present owner of the
Almost three months after the denial of the temporary injunction, the second cause of action was commenced by the plaintiffs, Nathaniel and Joyce Wolf, against James Sotire. Ladestro was joined as a third party defendant. The Wolfs’ complaint also alleged that the construction of Ladestro’s house was in violation of the Stamford zoning ordinances and requested the issuance of a writ of mandamus “restraining” Sotire from issuing a certificate of occupancy and directing him to revoke the building permit that had been issued for the construction of the house. The two cases were consolidated and tried to the court. In the first case, the trial court found that the construction of the house was in violation of the zoning ordinances and issued an
A review of the finding of facts, which is not subject to material correction, in consultation with the memorandum of decision of the trial court; New Haven Water Co. v. North Branford, 174 Conn. 556, 562, 392 A.2d 456; discloses the following: In 1968, Alexandra was the record owner of a 7.323 acre parcel of land located in Stamford. Access from this parcel of land to Briar Brae Road was provided by a fourteen foot wide strip of land, most of it owned by Alexandra, running in a westerly direction from the road to the parcel of land. In May, 1968, the parcel of land owned by Alexandra was subdivided into two parcels, labeled “B” and “D” on map No. 8651 of the Stamford land records. (See appendix.) Contemporaneous with that subdivision, parcel B was conveyed to a neighboring landowner in exchange for parcel C. (See appendix.) Parcel C is precipitous, consists of ledge, is heavily wooded, and is approximately fifty-five feet wide running from parcel D in a northerly direction and fronting on Briar Brae Road. The subdivision had no effect on the shape or ownership of the fourteen foot wide strip of land.
The plaintiffs in both cases own property abutting the fourteen foot wide strip of land and have a right-of-way over that strip of land as their only access to Briar Brae Road. In addition to Ladestro’s property, there are altogether five residences, including the plaintiffs’, situated along the right-of-way, using it as access to the main road, so that if permitted, Ladestro would be the sixth user of the right-of-way. The plaintiffs’ central complaint is that the right-of-way is inadequate for use by six families and that such an excessive use would result in irreparable injury to them.
The defendant Ladestro assigns error in the trial court’s conclusion that the construction of a single family residence on lot D is in violation
The defendant next relies on article III, section 71 which provides that “[a]ny parcel of land with an area or a width less than that prescribed for a lot in the district in which such lot is situated . . . may be used as a lot for any purpose permitted in the district . . .” with the proviso that there is compliance with all other zoning regulations. This exception, the defendant contends, applies to lot D because the width of the right-of-way is less than that required by the regulations. The clear wording of the section relied on by the defendant indicates that the width exception applies to the parcel of land and not, as the defendant urges, to the access-way serving that parcel. The zoning regulations provide a minimum width requirement for an RA-1 district of fifteen feet for one side yard and thirty-five feet for both side yards. See Appendix B to the Stamford Zoning Regulations. Reference to the
Thirdly, Ladestro assigns error in the trial court’s conclusion that the construction of a single family residence on lot D was not a nonconforming use of that property which is authorized by article IV, section 10A of the Stamford zoning regulations.
Having concluded that the construction of Ladestro’s house on lot D is in violation of the applicable zoning ordinances, we consider Ladestro’s claim that the injunction issued by the trial court was improper in light of the facts found.
In reviewing the grant of injunctive relief, we must look to the facts found by the trial court to
Any 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. Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 180, 377 A.2d 280; Fitzgerald v. Merard Holding Co., 106 Conn. 475, 482, 138 A.2d 483; see also, 3 Rathkopf, The Law of Zoning and Planning (4th Ed.) c. 66. “The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court, and the justiciable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury. Bendell v. Johnson, 153 Conn. 48, 51, 212 A.2d 199; 42 Am. Jur. 2d, Injunctions, §§ 48, 49; see Herbert v. Smyth, 155 Conn. 78, 85, 230 A.2d 235; Brainard v. West Hartford, 140 Conn. 631, 634, 103 A.2d 135.” Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222. It 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. See Scoville v. Ronalter, supra; Crouchley v. Pambianchi, 152 Conn. 224, 226, 205 A.2d 492; Lavitt v. Pierre, 152 Conn. 66, 77, 203 A.2d 289; Lehmaier v. Wadsworth, 122 Conn. 571, 191 A. 539. In the present case, although the plaintiffs have shown that they may possibly suffer irreparable harm, i.e., emergency vehicles blocked by a car stuck in the right-of-way, they have failed to demonstrate that such harm is imminent or that it will neces
Injunctive relief may not lie where it is predicated on the fears and apprehensions of the party applying for it or where it would be incompatible with the equities of the case; DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543; Moore v. Serafin, 163 Conn. 1, 11, 301 A.2d 238; Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 511, 218 A.2d 383; and likewise the power of equity to grant such relief may be exercised only under demanding circumstances. Brainard v. West Hartford, 140 Conn. 631, 634, 103 A.2d 135. The 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. Moore v. Serafin, supra; Scoville v. Ronalter, supra. The trial court concluded that there was a possibility that the right-of-way would be blocked and a further possibility that it would be necessary for an emergency vehicle to pass over the right-of-way even though it was not found that such a vehicle had ever been prevented from reaching its destination. The conjunction of these possibilities does not rise to the level of substantial probability that the harm complained of will occur which is required as the basis for injunctive relief.
In addition, the harm complained of by the plaintiffs may only possibly be caused by the use of the right-of-way by members of Ladestro’s household
There is one other difficulty with the injunction issued by the trial court, namely, that the alleged harm was not imminent. The trial court found that the alleged harm was only a possibility. It may be caused by Ladestro or it may not. Even if caused by Ladestro, it may occur soon or it may not occur until sometime far in the future. Indeed, the injunction betrays itself. While the trial court concludes that the plaintiffs would suffer irreparable harm if Ladestro were allowed to occupy his house and use the right-of-way, the injunction is not to become effective until one year after it was issued. It is difficult to reconcile the terms of the injunction with the trial court’s conclusion that the plaintiffs will suffer irreparable harm. Where the subordinate facts found by the trial court do not, as we have concluded, support the injunction issued, the injunction must be vacated.
In view of our determination that the trial court erred in finding irreparable harm to the plaintiffs, we need consider only briefly the plaintiffs’ cross appeal in the first case and the plaintiffs’ appeal in the second case.
In the first case the plaintiffs base their cross appeal on the ground that the trial court erred in
The plaintiffs appeal in the second case from the denial of the writ of mandamus and assign error in the trial court’s finding that the issuance of such a writ is' barred by laches. • The plaintiffs commenced their action for a writ of mandamus after Ladestro successfully defended against Karls’ suit for a temporary injunction and five months after construction of Ladestro’s house had begun. Under the circumstances, we cannot say that the trial court erred in concluding that the cause of action was barred by laches. See Leary v. Stylarama of New Haven, Inc., 174 Conn. 217, 219, 384 A.2d 377; 3 Rathkopf, The Law of Zoning and Planning (4th Ed.) ec. 67, 68.
There is error in the first case, Karls v. Alexandra Realty Corporation, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.
There is no error in the second case, Wolf v. Sotire.
In this opinion the other judges concurred.
(See Appendix on next page.)
By amendment to their complaint, the plaintiffs added a second count alleging nuisance by reason of the construction and occupancy of Ladestro’s house. This issue was not considered by the trial court and the plaintiffs have not assigned error in the trial court’s failure to rule on the issue. Accordingly, the plaintiffs’ claim of nuisance is deemed abandoned.
It is significant to note that these cases do not involve appeals from a decision of the zoning board or zoning commission.
Article III, section 7o of the Stamford zoning ordinances provides that a lot within an RA-1 zoning district that does not have the requisite street frontage can nonetheless be used for a single family residence provided the lot “. . . has access to a street by means of an unobstructed legal accessway held in the same ownership as the accessway lot, that such accessway is at least twenty-five feet (25') wide and, on any record map dated after August 1, 1959, not wider than fifty feet (50') . . . In the present case, the fourteen foot right-of-way is too narrow and parcel C is too wide to conform to these accessway requirements.
Article IV, section 10A of the Stamford zoning regulations provides: “Any building or use of land or building legally existing at the time of enactment of this Regulation, or of any amendments thereto, or authorized lawful permit issued prior to the adoption of these Regulations which does not conform to the provisions of these Regulations for the Use Districts in which it is located, shall be designated a non-conforming use. Such use may be continued but may not be extended or expanded, or changed to a less restrictive use as listed in LAND USE SCHEDULE in APPENDIX A.”
It appears that several of the residences already existing along the right-of-way are also in violation of the frontage requirements and are not nonconforming uses of their respective properties since they also were constructed after the adoption of the zoning regulations.