Bauer v. Waste Management of Connecticut, Inc.

• Citation: 239 Conn. 515,686 A.2d 481
• Decision Date: 31 December 1996
• Docket Number: No. 15359,15359
• Court: Supreme Court of Connecticut
• Parties: Robert BAUER v. WASTE MANAGEMENT OF CONNECTICUT, INC.

Page 481

686 A.2d 481

239 Conn. 515

Robert BAUER v. WASTE MANAGEMENT OF CONNECTICUT, INC.

No. 15359.

Supreme Court of Connecticut.

Argued Oct. 3, 1996.

Decided Dec. 31, 1996.

Edward F. Ryan, Wallingford, pro hac vice, with whom were Timothy S. Hollister and, on the brief, Joseph P. Williams, Hartford, for appellant (defendant).

Jeffrey B. Sienkiewicz, with whom was Michael S. McKenna, New Milford, for appellee (substitute plaintiff).

Before BORDEN, NORCOTT, KATZ, PALMER and McDONALD, JJ.

NORCOTT, Associate Justice.

This appeal arises out of proceedings following our remand in Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 662 A.2d 1179 (1995). In Bauer, we upheld the validity of a New Milford zoning regulation limiting the maximum height of a landfill to ninety feet. Because the defendant conceded that it had violated the regulation, we remanded the case for further proceedings on the plaintiff's claim for injunctive relief. In the present appeal, the defendant challenges the trial court's issuance of a permanent mandatory injunction ordering the defendant to remove all waste deposited at the landfill above the height of ninety feet. We affirm the judgment of the trial court.

The trial court's memorandum of decision, quoting extensively from Bauer, establishes the following facts. The plaintiff is the zoning enforcement officer for the town of New Milford (zoning enforcement officer). ¹ The defendant, Waste Management of Connecticut, Inc. (Waste Management), owns and operates a solid waste landfill located in an industrial zone in New Milford. The landfill covers seventy acres of land and has been operating as a nonconforming use since 1971, when New Milford adopted zoning regulations prohibiting the operation of a landfill in an industrial zone.

In 1976, the department of environmental protection (DEP) issued a permit to Waste Management's predecessor for the disposal of solid waste on the landfill up to a height of ninety feet. Id., 226, 662 A.2d 1179. In 1987, the DEP issued a modified permit to Waste Management, which extended the height limitation to 190 feet. Id., 227, 662 A.2d 1179.

On November 14, 1989, the New Milford zoning commission (commission) amended its zoning regulations to impose a ninety foot height limitation on any landfill existing as a nonconforming use in an industrial zone in New Milford. Waste Management opposed the new regulation because it wanted to continue depositing waste on its landfill up to the 190 foot limitation contained in its DEP permit.

In December, 1989, Waste Management filed an administrative appeal challenging the commission's adoption of the height limitation on the grounds of preemption, waiver, nonconforming use and an unconstitutional taking. ² The trial court bifurcated the preemption, waiver and nonconforming use claims from the taking claim. In February, 1992, the trial court, Susco J., ruled in the commission's favor on the preemption, waiver and nonconforming use claims. The trial court then scheduled a hearing on the taking claim. Id., 228, 662 A.2d 1179.

In August, 1992, before trial on the taking claim occurred, the zoning enforcement officer brought the present enforcement action seeking a temporary and permanent injunction to restrain Waste Management from continuing to deposit waste in violation of the ninety foot height limitation, and to order Waste Management to correct and abate its violation. In October, 1992, the trial court held a hearing on the claim for a temporary injunction. This hearing, however, was never concluded. ³

From May 4 through May 6, 1993, a trial was held on Waste Management's taking claim together with the zoning enforcement officer's claim for a permanent injunction. On November 22, 1993, the trial court, Susco, J., held that the regulation constituted a taking without just compensation in violation of the Connecticut constitution. The court denied the zoning enforcement officer's claim for injunctive relief because the regulation was invalid and ordered the commission to revoke the height limitation. In April, 1994, the trial court issued an articulation, holding that the zoning enforcement officer was estopped from enforcing the height limitation and that Waste Management's deposit of waste between 90 and 190 feet was the permissible intensification of a vested nonconforming use. Id., 228-29, 662 A.2d 1179.

In the enforcement action, the zoning enforcement officer appealed to the Appellate Court from the judgment of the trial court on the claims of injunctive relief, estoppel, and permissible intensification of a vested nonconforming use. In the administrative appeal, the commission appealed from the trial court's judgment on the taking claim, and Waste Management cross appealed on the preemption and waiver claims. We transferred both appeals and the cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c) and consolidated the cases on appeal. On July 11, 1995, this court issued an opinion deciding both cases. We affirmed the trial court on the preemption and waiver claims, but reversed on the claims of an unconstitutional taking, estoppel, and permissible intensification of a nonconforming use. We remanded the enforcement action to the trial court for further proceedings to consider the zoning enforcement officer's claim for injunctive relief. We remanded the administrative appeal to the trial court with direction to render a judgment of dismissal. Id., 259, 662 A.2d 1179.

On remand, Waste Management requested leave to amend its answer and special defenses to assert facts that had occurred since the original trial in May, 1993. Waste Management alleged, inter alia, that the town of New Milford contributed waste to the landfill above ninety feet and benefited financially from the deposit of waste at the landfill. These allegations formed the basis of Waste Management's proposed special defenses of unclean hands and unjust enrichment. The trial court, Pickett, J., denied Waste Management's request.

On September 19, 1995, the trial court, Gill, J., issued a temporary injunction prohibiting Waste Management from depositing waste or other material above ninety feet and prohibiting the deposit of any waste at the landfill after September 29, 1995.

On November 7, 1995, following a seven day trial, the trial court, Gill, J., granted the zoning enforcement officer's claim for injunctive relief and assessed a civil penalty against Waste Management. At the time of trial, Waste Management's landfill was 160 feet high at its peak elevation, 70 feet above the regulation's height limitation. Of the seventy acres that comprised the landfill, twenty-three acres contained waste at heights above ninety feet. Specifically, the trial court ordered Waste Management to: (1) refrain from depositing solid waste, fill and other material on the landfill above ninety feet; (2) prepare a "clean closure plan" for the removal of all solid waste, fill and other material existing on the landfill above ninety feet; (3) apply to the DEP and any other pertinent regulatory agencies for the permits necessary to remove all such solid waste, fill and other materials from the landfill; and (4) pay a civil penalty in the amount of $89,200 for the period of March 31, 1993, through September 19, 1995. The court retained continuing jurisdiction over the case "to resolve any issues that may arise pending the DEP closure approval," and stated that it "will reopen the hearings and review appropriate remedies if clean closure is not approved." Waste Management appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

On appeal, Waste Management does not challenge the prohibitory injunction restraining it from receiving or depositing any waste at the landfill, or the imposition of civil penalties. Waste Management's sole challenge is to the trial court's granting of a permanent mandatory injunction ordering Waste Management to remove all wastes and other material deposited above the height of ninety feet. In challenging this order, Waste Management claims that the trial court: (1) abused its discretion in denying Waste Management's request to amend its answer and therefore improperly excluded evidence of the zoning enforcement officer's allegedly inequitable conduct; (2) improperly concluded that Waste Management's violation of the height limitation was wilful; and (3) abused its discretion in ordering Waste Management to remove all waste deposited above the height of ninety feet. We disagree with each of these claims and, accordingly, affirm the judgment of the trial court.

I

Waste Management first claims that the trial court abused its discretion in refusing to allow Waste Management to amend its answer and special defenses. We disagree.

Whether to grant a request to amend the pleadings is a matter within the discretion of the trial court, and this court will rarely overturn the decision of the trial court. Kelley v. Bonney, 221 Conn. 549, 591, 606 A.2d 693 (1992); Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985); Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985). "Judicial discretion ... is always legal discretion, exercised according to the recognized principles of equity.... While its exercise will not ordinarily be interfered with on appeal to this court, reversal is required where the abuse is manifest or where injustice appears to have been done." (Citation omitted; internal quotation marks omitted.) Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983).

Waste Management argues that it should have been allowed to amend its answer and special defenses because this court's remand "for further proceedings" in Bauerentitled it to a new trial. The zoning enforcement officer counters that our...