Opinion
No. CV 07-4030243 S
June 19, 2008
MEMORANDUM OF DECISION
"Right Things in the Wrong Places" A Handful of Dust Evelyn Waugh I
The plaintiffs, Town of Suffield Zoning and Planning Commission (the Town) and James R. Taylor have filed a two-count complaint dated May 11, 2007, against the defendants, David N. and Mary Terry of 286 Ratley Road, West Suffield, Connecticut.
The Town alleges that prior to May 10, 2006, the defendants stored junk material, military equipment, other miscellaneous nonresidential material and equipment and unregistered motor vehicles and commercial vehicles. It is claimed that the actions of the defendants were in violation of § VII.G., § IV.B. and § III.R of the Town's Zoning Regulations.
The Town also alleges that James R. Taylor, who is the Town Zoning Enforcement Officer, issued a Cease and Desist Order dated May 10, 2006 and that the defendants have not complied with said order.
In the second count of the complaint, the Town alleges that the failure of the defendants to cease the violation of the Regulations was willful.
The plaintiffs claim the following remedies:
1. A permanent injunction directing the Defendants, or their heirs, successors, or assigns, to cease the zoning violations, remove the unregistered and commercial vehicles, military equipment and non-residential use material and equipment and to not violate these provisions of the Regulations in the future;
2. Fines in accordance with § 8-12 of the Connecticut General Statutes;
3. A civil penalty in accordance with § 8-12 of the Connecticut General Statutes;
4. Costs;
5. Attorneys fees;
6. Money damages;
7. Such other relief as in equity may pertain.
In response to the plaintiffs' complaint, the defendants have filed the following special defense:
First Special Defense
Following the issuance of the cease and desist order on May 10, 2006, the defendants caused all miscellaneous building materials and other non-residential materials and equipment to be removed from the parcel of property at 286 Ratley Road, West Suffield, Connecticut.
Second Special Defense
With respect to the motor vehicles and other equipment that the defendants are being ordered to remove, the maintenance of said motor vehicles and other equipment constitutes a lawful non-conforming use within the meaning of Section XI.C of the Suffield Zoning Regulations.
Third Special Defense
With respect to the motor vehicles and other equipment that the defendants are being ordered to remove, said motor vehicle and other equipments continue to be kept on the property at 286 Ratley Road, West Suffield, Connecticut, pursuant to an agreement which was entered into with the Town of Suffield Zoning Authorities in June 1997.
II
A hearing was held on April 15, 2008. The Town presented the testimony of James R. Taylor, who has been the Zoning Enforcement Officer for the Town for 18 years, he indicated that in 1996 he received complaints concerning the storage of nonresidential material on defendants' property, which is zoned residential.
Mr. Taylor referred to plaintiffs' Exhibit 1, which is a Cease and Desist Order dated May 10, 2006. Exhibit 1 alludes to a prior Cease and Desist Order of May 10, 1997 for basically the same violations.
In Exhibit 1, Mr. Taylor states that a recent inspection of your property has revealed zoning violations that were listed as "Re: Zoning Violations: Section VII.G. (Storage of unregistered Vehicles), Section IV.B. (Storage of Junk Material, Military Equipment and other Miscellaneous Non-residential use Material and Equipment)."
Page 2 of Exhibit 1 contains the Cease and Desist Order. The Order states the following:
YOU ARE HEREBY NOTIFIED that the conditions described herein, at the following location, are in violation of Sections VII.G. and IV.B. of the Suffield Zoning Regulations.
LOCATION: 286 Ratley Road
NAME OF OWNER: Mr. David Terry and Ms. Mary Terry
ADDRESS OF OWNER: 286 Ratley Road, West Suffield, CT 06093
NATURE OF VIOLATIONS: Storage of Unregistered Vehicles, Storage of Junk Material, Military Equipment and other Non-Residential use Material and Equipment.
NECESSARY STEPS TO BE TAKEN: Remove all subject Vehicles and Equipment from the Property
Mr. Taylor explained that the Town's Regulations are permissive, that is if a use is not listed as permitted it is prohibited. He also indicated that the defendants' property is R45 which is a residential zone.
The use table is found in Section IV.B. of the Zoning Regulations and states
The Use Table on the following page lists permitted uses of land and buildings as follows: Any use not specifically listed or otherwise permitted in a zoning district herein established shall be deemed prohibited unless the Commission determines that a proposed use is substantially similar to a listed use. No structure shall be used, erected or expanded and no land use shall be established or expanded except in accordance with these regulations.
Section VII.G. provides,
G. RESTRICTIONS ON REGISTERED MOTOR VEHICLES
Parking or storage of unregistered motor vehicles shall not be permitted in any zone except within an enclosed building. Vehicles used on a farm or those stored on a Connecticut Department of Motor Vehicles licensed premise are exempt, but in no event shall such vehicles be kept in front of any building or front building . . . and Section III.R. provides,
In Residential Zoning Districts, commercial vehicles requiring a CDL (commercial drivers license) shall not be parked or stored overnight, except for farm equipment associated with a farm on which said equipment is stored.
David Terry testified on his behalf and indicated that he has owned the property at 286 Ratley Road, West Suffield, Connecticut for 35 years, it consists of 2 acres and is in a R45 zone. He stated his hobby is collecting military vehicles and that he has 5 military vehicles and an ambulance. He also has 3 personal cars, compressors for sand blasting, generators, trailers, 3 storage boxes and a tractor weighing about 7,500 lbs. He pointed out that most of his vehicles are registered and has presented documentation to that effect.
III
At the conclusion of the hearing the court instructed the parties to visit the property with their attorneys to determine the status of the Town's allegations. The case was continued to May 6, 2008. On said date the parties returned to court and stipulated to the introduction into evidence of plaintiffs' Exhibit 13, said exhibit indicates the following:
Item License Number
1. Ambulance 68583
2. VQ17M Truck 70979
3. Trailer with antenna dish amongst the weeds
4. M35 2-1/2 ton Truck 17932
5. M62 Wrecker 56082
6. A trailer with two doors approximately 30 feet long
7. Two 20 x 8 foot storage boxes
8. A 12 x 7 foot enclosed shelter
9. A 12 x 8 foot storage box adjacent to the house
10. Tractor, 4-wheeled, yellow
11. Two-wheel trailer with 35 Kilowatt generator 832-714
12. Large equipment trailer which Mr. Terry said was not on the property at the time we visited.
13. Miscellaneous junk, including some old tires; this junk appears to be in the wreckage of an old shed in amongst the saplings in the rear of the house.
The items which are not in violation and which are located on the property, are the following:
1. Two-wheeled utility trailer License #433-998
2. Chevy Blazer License #232-TUO
3. F-350 Stake truck License #52054-C
Also at said hearing the parties agreed that the plaintiff may amend its complaint so as to reference the items in plaintiffs' Exhibit 13. Accordingly, the plaintiff filed a Motion to Amend complaint dated June 4, 2008. The defendants stipulated that said motion may be granted, therefore the motion is granted.
The amended complaint in paragraph 5 makes more specific the items in question, they are the items contained in plaintiffs' exhibit 13. The plaintiffs have attached to its amended complaint Exhibit A which are the same items as reflected in plaintiffs' Exhibit 13.
IV
The plaintiff argues that although both Connecticut General Statutes §§ 8-6 and 8-7 and the Suffield Zoning Regulations § XIIIBI provide for the appeal of a decision of the zoning enforcement officer to the Suffield Zoning Board of Appeals, the defendants did not do so. The plaintiffs contend that this failure on the part of the defendants establishes the presence of the vehicles and the junk on the property as violation of the regulations. The plaintiffs also raise this point in its Motion in Limine, dated April 15, 2008.
In substantiation of its position the plaintiff cites Town of Haddam v. Lapointe, 42 Conn.App. 631, Greenwich v. Kristoff, 180 Conn. 575, and Planning and Zoning Commission v. Desrosier, 15 Conn.App. 550. In Desrosier, the Appellate Court held:
The defendants were served with an order directing them to cease and desist from using 26 Oak Drive as a two-family residence on November 19, 1985. The defendants have ignored this order. General Statutes § 8-12 authorizes the zoning enforcement officer to order in writing the remedy of any condition found to exist in violation of the zoning regulations. The defendants could have appealed the cease and desist order to the zoning board of appeals, but they did not do so. Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980). Because the defendants have failed to comply with a valid order which they did not challenge, the trial court should have granted the injunctive relief sought in the second count of the complaint.
The defendants argue that there are exceptions to the rule that one must exhaust administrative remedies before asking a court to rule on the issues in question, however, the defendants have not established by a preponderance of the evidence that any exception applies to the instant case.
Therefore, the court agrees with the plaintiffs' position that because the defendants have failed to appeal the Cease and Desist Order to the Suffield Zoning Board of Appeals, they are foreclosed from claiming that they have not violated the S.3. Regulations.
Accordingly, the court concludes that the defendants' violation of the Suffield Regulations has been established.
V
While maintaining its position that the defendants' failure to appeal the Cease and Desist Order forecloses the defendants from claiming that they have not violated the Suffield Regulations, the plaintiff contends that the keeping of the items in question on their property still constitutes a violation of the regulations.
The plaintiff argues that the keeping of the items is not a residential use. Also that the property is in an R45 residential zone and that the main uses in an R45 zone are single-family dwellings, customary home office or occupation, farms and nurseries for outdoor plant stock growing, use table Regulation § IVB.
The defendants argue that item Nos. 1, 2, 4 and 5 are registered motor vehicles owned by the defendant as part of his hobby of collecting unique antique military vehicles. Also item Nos. 1, 2, 4, 5, 8, 10, 11 and 12 are used in the pursuit of the defendant's hobby and not for commercial or business use.
Mr. Terry's hobby of collecting and restoring military vehicles is commendable in terms of history, however, it does not provide a legal basis for the storage of items not allowed by the Regulations. As noted the defendants' property is in a residential zone which limits the uses in that zone to residential uses. The table of permitted uses § IV.B. does not allow the storage of vehicles or junk on the property irrespective if such storage is relative to a hobby.
The plaintiffs argue and the Court agrees that residential properties are limited by the main and accessory uses allowed on them and that storage of large trailers, vehicles and junk is not a permitted use.
The plaintiffs have established by a preponderance of the evidence that they are entitled to injunctive relief.
CT Page 10293
VI
The defendants have acknowledged that item No. 3 (Trailer) and item No. 13 (miscellaneous junk) are in violation of the Regulations and have agreed to remove them prior to June 30, 2008.Therefore, based on the foregoing, the Court grants the plaintiffs' request for a permanent injunction and issues the following orders:
1. The defendants shall permanently remove the following items from their property at 286 Ratley Road, Suffield, Connecticut no later than October 30, 2008:
a. Ambulance
b. VQI7M Truck
e. M35 2-1/2 Ton Truck
d. M62 Wrecker
e. Two-wheeled trailer and 35 Kilowatt generator
f. Miscellaneous junk including old tires
g. Trailer with antenna dish on it
h. Trailer with 2 doors approximately 30 feet long
i. Two 20 x 8 foot storage boxes
j. One 12 x 7 foot enclosed shelter
k. One 12 x 8 foot storage box adjacent to the Defendants' residence
l. Tractor, 4-wheeled, yellow
m. Large equipment trailer
2. The defendants are enjoined from keeping any of the above-listed items on their property past the date noted in this order and the defendants are enjoined from moving any other items of a similar nature or kind to their property.
3. Any violation of this order shall cause a monetary penalty to be imposed in an amount to be set by the Court for each day a violation either continues beyond the dates set forth above or for each day a new violation is established and continues. This penalty shall be paid to the Plaintiffs. Said monetary penalty can include costs and legal fees.