Opinion
No. CV 09 4036946S
June 14, 2010
MEMORANDUM OF DECISION
PROCEDURAL HISTORY AND FACTS
This is an action pursuant to General Statutes § 8-12 seeking a permanent injunction, civil penalties and other relief brought by the plaintiff zoning enforcement officer of Woodbridge against the defendants who have been, and continue to store certain unregistered motor vehicles and campers outside on their property in violation of Section 3.71 of the Town of Woodbridge Zoning Regulations which requires that such vehicles and campers be screened from view. The defendant, Denise Weiss was defaulted on July 1, 2009 for her failure to file an appearance. The defendant, Eden Weiss was defaulted on July 29, 2009 for his failure to plead. Notwithstanding that both defendants had been defaulted, a trial was held on this action on February 17, 2010. The Town of Woodbridge appeared through counsel, the defendant, Eden Weiss, appeared as a self-represented litigant and the defendant Denise Weiss a/k/a Denise Merrill (Denise Weiss) failed to appear. Proposed Findings of Fact and Conclusions of Law were due and filed on March 17, 2010. On March 19, 2010, through counsel, the defendant Denise Weiss filed a Motion to Reopen and Reargue. The motion was scheduled for oral argument on May 3, 2010. All parties appeared. On May 12, 2010, the defendant, Denise Weiss withdrew her Motion to Reopen and Reargue. From the hearing held on February 17, 2010 the court finds the following facts by a preponderance of the evidence.
The parties agreed at oral argument on May 12, 2010, that the filing of the Motion to Reopen and Reargue and the scheduling and hearing of oral argument on the motion would extend the 120-day time requirement for issuance of the court's decision.
1) Terry Gilbertson is the duly authorized Zoning Enforcement Officer of the Town of Woodbridge vested with the powers granted under Connecticut General Statutes § 8-12.
2) Eden Weiss and Denise Weiss ("Defendants"), are the record owners of property located at 100 Ford Road, Woodbridge, Connecticut ("the Property").
3) The Property is located in the Residential A District of the Town of Woodbridge.
4) The defendants have been and continue to, store certain unregistered motor vehicles and campers outside on the Property in violation of Section 3.71 of the Town of Woodbridge Zoning Regulations which requires that such vehicles and campers be screened from view.
5) By letter dated April 14, 2008, the defendants were given a "Warning Notice of Violation" by the authorized Zoning Enforcement Officer, Terry Gilbertson, that the outside storage of the referenced motor vehicles without proper screening was in violation of the Zoning Regulations of the Town of Woodbridge and to abate such violation within ten (10) days.
6) By letter and cease and desist order dated November 25, 2008 ("Cease and Desist Order"), the defendants were given notice by the authorized Zoning Enforcement Officer, Terry Gilbertson, that the outside storage of said motor vehicles without proper screening was in violation of the Zoning Regulations of the Town of Woodbridge.
7) After delivery of the Cease and Desist Order, numerous inspections of the exterior of the Property by Gilbertson revealed that the defendants continued to store unregistered motor vehicles and campers without proper screening in direct violation of the Cease and Desist Order issued November 25, 2008.
8) The defendants through Eden Weiss made several attempts to screen the unregistered vehicles by erecting a six-foot-high stockade fence to screen the Air Stream Camp Trailer, and by placing automobile covers over the unregistered motor vehicles. The defendants expended approximately $1000 on the fence and approximately $370 on the car covers.
9) The defendants' attempts to comply with the Cease and Desist Order were not successful.
10) On the day before trial the defendant, Eden Weiss made one final attempt to comply with the Cease and Desist Order by registering the Air Stream Camp Trailer in the State of Connecticut to his sister, Camomile Hixon. The trailer was not registered to the defendants' property, but rather to Hixon's property located at 4 Hamburg Road, East Haddam, Connecticut.
11) Since the date of the Cease and Desist Order of November 25, 2008, the defendants have failed to comply with said order.
12) The defendants did not exercise their right to appeal the Cease and Desist Order to the Zoning Board of Appeals.
13) The defendant, Eden Weiss, acknowledged under oath the storage of numerous unregistered motor vehicles and two campers on the Property without proper screening since April 14, 2008, through the date of trial.
14) The defendant, Eden Weiss, acknowledged under oath that of the numerous vehicles and two campers stored on the Property from April 14, 2008, up to the date of trial, only two vehicles were registered to the Property, the 2004 Dodge Caravan and the 1992 Mercedes 300.
15) As of the date of the trial, 674 days have elapsed since the issuance of the April 14, 2008, letter by Gilbertson giving a "Warning Notice of Violation" to the defendants.
16) As of the date of the trial, 449 days have elapsed since the issuance of the November 25, 2008, Cease and Desist Order to the defendants.
LEGAL DISCUSSION
The Town of Woodbridge seeks a permanent injunction, under General Statutes § 8-12, enjoining the defendants from storing the numerous unregistered vehicles and the two unregistered campers on their property in violation of Section 3.71 of the Town of Woodbridge's Zoning Regulations. In addition to the injunction, the Town seeks a civil penalty in the amount of $2500 and enhanced penalties regarding daily fines for continuance of the violation, as well as attorneys fees and costs as enumerated in § 8-12 for a willful violation of its Town regulations.
General Statutes § 8-12 provides in relevant part: "Procedure when regulations are violated. If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer or official board or authority designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter or, when the violation involves grading of land, the removal of earth or soil erosion and sediment control, to issue, in writing, a cease and desist order to be effective immediately. The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists, or the lessee or tenant of an entire building or entire premises where such violation has been committed or exists, or the owner, agent, lessee or tenant of any part of the building or premises in which such violation has been committed or exists, or the agent, architect, builder, contractor or any other person who commits, takes part or assists in any such violation or who maintains any building or premises in which any such violation exists, shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues; but, if the offense is willful the person convicted thereof shall be fined not less than one hundred dollars nor more than two hundred and fifty dollars for each day that such violation continues, or imprisoned not more than ten days for each day such violation continues or both . . . Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within ten days after such service, or having been served with a cease and desist order with respect to a violation involving grading of land, removal of earth or soil erosion and sediment control, fails to comply with such order immediately, or continues to violate any provision of the regulations made under authority of the provisions of this chapter specified in such order shall be subject to a civil penalty not to exceed two thousand five hundred dollars, payable to the treasurer of the municipality . . . If the court renders judgment for such municipality and finds that the violation was willful, the court shall allow such municipality its costs, together with reasonable attorneys fees to be taxed by the court . . ."
Our Supreme Court has stated: "In seeking an injunction pursuant to § 8-12, the town is relieved of the normal burden of proving irreparable harm and the lack of an adequate remedy at law because § 8-12 by implication assumes that no adequate alternative remedy exists and that the injury was irreparable . . . The town need prove only that the statutes or ordinances were violated." (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 532-33, 686 A.2d 481 (1996); See also, Driska v. Pierce, 110 Conn.App. 727, 955 A.2d 1235 (2008). "The proof of violations does not, however, deprive the court of discretion and does not obligate the court mechanically to grant the requested injunction for every violation." Gelinas v. West Hartford, 225 Conn. 575, 588, 626 A.2d 259 (1993).
"However, [e]ven in an action brought by a zoning enforcement officer to require conformity with the zoning regulations, the granting of injunctive relief, which must be compatible with the equities of the case, rests within the court's sound discretion . . . Those equities should take into account the gravity and willfulness of the violation, as well as the potential harm to the defendants." (Citation omitted; internal quotation marks omitted.) Id., 595-96.
Section 3.71 of the Town of Woodbridge Zoning Regulations provides in relevant part: " Outside Storage in Residence Districts. The outside storage of any materials, objects or things in Residence Districts, where such outside storage is not a customary accessory use to the principal use of the property as permitted by these Regulations in the district in which the property is located, is hereby prohibited unless such stored materials, objects or things are screened from view on all sides, by plantings, opaque fencing or other appropriate screening devices. This prohibition shall apply especially, but without limiting its generality in any way, to the outside storage of camp trailers, boats and boat trailers, refrigerators, unregistered or unused motor vehicles and unused machinery and equipment of any kind . . ." Section 1.41 defines "screen" or "screening" as "[a] strip at least ten feet wide, together with a wall or fence, if any, as required by the Commission, densely planted (or having equivalent natural growth) with evergreen shrubs or trees at least four feet high at the time of planting of a type that will form a dense screen at least six feet high within three years. The screen, and wall or fence, if any, may have reasonable entrances and exits and said screen, wall or fence shall be maintained in good condition at all times." In reviewing the evidence presented to the court, it is clear that the defendants stored and continue to store a number of unregistered vehicles and campers on their property in violation of the local zoning regulation. The Town is therefore entitled to a permanent injunction against the defendants. The only issue remaining for the court is whether the conduct of the defendants was "willful."
The defendant Eden Weiss made several attempts to come into compliance with the zoning regulations. After the warning notice, Weiss spoke with someone at the Town of Woodbridge Town Hall and, some time thereafter, purchased car covers for the motor vehicles. On or around June 2009, Weiss erected a stockade fence which cost him $1000, in another attempt to comply with the local zoning ordinance by "screening" the unregistered vehicles located on his property. The day before trial he also made an attempt to register the Air Stream camper. While Mr. Weiss' efforts fell far short of complying with the local zoning regulation, he did in fact make attempts to comply with the regulations. Section 8-12 does not contain any definition of the term "willful." A willful violation of the regulations as contemplated by § 8-12 would involve something more than the simple act of failing to comply with the regulation, but rather action which is an obvious and deliberate intent to violate the applicable regulations. See, Stock v. Ziebell, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. 064005648 (September 3, 2008, Ripley, J.) [ 46 Conn. L. Rptr. 249]. "Our Supreme Court defines `willful misconduct' as `intentional conduct' with the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury must be intentional." (Citations omitted.) Witczak v. Gerald, 69 Conn.App. 106, 116, 793 A.2d 1193 (2002). Here, an attempt was made by the defendants, through Eden Weiss' actions, to comply with the local regulations, and while such attempts failed, the conduct of the defendant Eden Weiss does not appear to the court to rise to the level where enhanced penalties would be in order.
Accordingly, the court having determined that the defendants violated the Town of Woodbridge Zoning Regulations and pursuant to § 8-12 enters the following orders:
1. The defendants are permanently enjoined from continuing to store any unregistered vehicles and campers on their property located at 100 Ford Road, Woodbridge, Connecticut and shall remove said vehicles and campers within 30 days from the date of entry of judgment.
2. In accordance with General Statutes § 8-12, the defendants are hereby ordered to pay a civil penalty in the amount of $2500 within 30 days from the date of entry of judgment.
3. The defendants are hereby further ordered to pay a civil penalty in the amount of $20.00 per day commencing November 25, 2008 through February 17, 2010, a total of 449 days, which is the number of days that have elapsed since the issuance of the Cease and Desist order through the date of trial, and which amounts to $8980. Said amount shall be paid within 30 days from the date of entry of judgment.
4. The plaintiff's claim for attorneys fees and costs is denied.