9 Conn. App. 534 | Conn. App. Ct. | 1987
This is an appeal from the Superior Court’s dismissal of the plaintiff’s action for injunctive relief and civil penalties. The dismissal was based on the prior pending action doctrine. The plaintiff’s sole claim of error is that the trial court erred in dismissing the injunction action. We agree.
When two separate law suits are “virtually alike” the second suit is generally dismissed on the basis of the prior pending action doctrine. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981). This rule has consistently been applied in our courts. “ ‘ “The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. ...” This is a “rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.” . . .’ ‘The rule forbidding the second action is not, however, one “of unbending rigor, nor of universal application, nor a principle of absolute law . . . . (Citations omitted.) Solomon v. Aberman, 196 Conn. 359, 383, 493 A.2d 193 (1985), quoting Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., supra, 112-13. Thus, if the two suits are “virtually alike” the rule is applicable.
The plaintiff in this case instituted the suit for injunctive relief pursuant to General Statutes § 8-12 which provides local zoning enforcement officers with a means to enforce the local zoning laws. The statute specifically allows the zoning enforcement officer to sue for injunctive relief as well as for monetary fines.
The defendants sought a variance of the local zoning laws which clearly prohibited using their Lake
The purposes of §§ 8-12 and 8-6 are separate and distinct. Section 8-12 empowers officers to seek relief, that is, to take overt action in order to compel compliance with the zoning laws. The officers can act on their own initiative, and do not act merely in response to an appeal or request. In contrast, § 8-6 enables the board of appeals to grant or deny requests for variances. If no appeals or exceptions are made, the board of appeals has no power to force compliance with the zoning laws. In addition, if an appeal is made from the denial of a variance, and the appeal is denied, the board of appeals is without further authority to compel compliance with the existing zoning laws.
In this case, the defendants were unable to obtain a variance. Thus, they are living in their seasonal dwelling on a year-round basis in violation of the local zoning laws. The board of appeals however, has no authority to pursue the matter any further. That authority rests only with the zoning commission and its officers. Thus, due to the dismissal of the injunction action, the plaintiff planning and zoning commission has been left with no pending lawsuit to enforce its laws via injunctive action. The plaintiff is therefore required to institute a new suit for injunctive relief pursuant to § 8-12. It is clear that the decision of the board of appeals on the variance action did not afford the plaintiff relief.
When we apply the same rationale to this case, the trial court, by granting the motion to dismiss, deprived the plaintiff of the “use in a fair manner of [the] proper remedy” for enjoining the defendants from violating the Lebanon ordnances. The trial court should not have granted the motion to dismiss.
There is error, the judgment is set aside and the case is remanded to be proceeded with according to law.
In this opinion the other judges concurred.
Section 9.4 of the Lebanon Planning and Zoning Commission Regulations provides in pertinent part: “These regulations may be enforced in administrative and/or judicial proceedings in the name of either the Planning and Zoning Commission or its designated agent, the zoning officer, or in both names.”
General Statutes § 8-12 provides in pertinent part: “If any building . . . has been used, in violation of any provision of this chapter or of any . . . ordinance . . . made under authority conferred hereby, any official having jurisdiction . . . may institute an action or proceeding to prevent such unlawful . . . use . . . or to prevent the occupancy of such building, structure or land . ”
See footnote 2, supra.