Cummings v. Tripp, 12947

Decision Date09 June 1987
Docket NumberNo. 12947,12947
Citation204 Conn. 67,527 A.2d 230
CourtConnecticut Supreme Court
PartiesDaniel E. CUMMINGS et al. v. Morey W. TRIPP et al.

Wesley W. Horton, Hartford, with whom were Emmet L. Cosgrove, New London, Kimberly Knox and, on the brief, William R. Moller, Hartford, for appellants-appellees (defendants).

Charles A. Sherwood, New Haven, for appellees-appellants (plaintiffs).

Before PETERS, C.J., and HEALEY, SHEA, DUPONT and McKEEVER, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiffs, Daniel E. Cummings et al., filed suit against the defendants, Morey W. Tripp et al., seeking injunctive relief and damages from an alleged violation of the East Lyme zoning regulations and an alleged common law private nuisance. The defendants counterclaimed for damages. 1 The case was referred to Allyn L. Brown, Jr., who heard the case as an attorney state trial referee. In addition to viewing the neighborhood and premises in question, he issued a report with extensive factual findings and conclusions.

The findings, which are not in dispute, 2 include the following: The plaintiffs are owners of residential property on River Road in East Lyme. The defendants own property at 23 River Road (Cozy Nest), consisting of a two-story dwelling (dwelling) and seven separate residential rental units (cottages) which are located on a little more than one acre of land. The defendants rent out the dwelling and the cottages on a daily or weekly basis. The plaintiffs claim that this use of the premises violates the East Lyme zoning regulations and constitutes a nuisance.

In 1945, East Lyme first enacted a zoning ordinance and divided the town into residential, business and industrial districts. 3 At that time, the River Road neighborhood, including the Cozy Nest property, was classified as a residential district. This classification did not permit the rental of cabins or rooms except as an existing nonconforming use. In 1954, the town amended its zoning regulations, classifying the defendants' property as within an R-3 residential district. Under the 1954 regulations, the rental of cabins was a prohibited use in an R-3 residential district. The 1954 regulations provided that "no nonconforming use which has been abandoned for a period of one year shall thereafter be resumed." From 1967 to the present, the zoning regulations had provided that "no nonconforming use which has been abandoned or not used for a period of one year shall be thereafter resumed" and "a nonconforming use shall not be enlarged or extended."

Presently, River Road, including the Cozy Nest property, is located in an R-10 residential district which does not permit cabin rentals. 4 Since 1969, the renting of rooms has not been a permitted use in an R-10 residential district.

The rental of the cottages for summer use continued sporadically from 1945 until the defendants purchased the property in 1974. 5 The cottages were rented on a weekly or monthly basis during the months of June, July and August. During that time, the dwelling was used as a single-family residence.

Since 1974, the defendants have spent more than $77,000 to improve the property. They have converted the dwelling from a single-family residence into five rental units and have insulated and modernized the cottages. 6 Both the dwelling and the cottages are now rented on a daily or weekly basis to transients as part of the defendants' motel business. 7

On May 22, 1975, Attorney Ronald G. Cummings wrote to Ernest Busch, the East Lyme zoning enforcement officer, complaining on behalf of his father, Daniel Cummings, of zoning violations on the defendants' property at 23 River Road. After inspecting the premises and reviewing town records, Busch determined that the defendants were not in violation of the zoning regulations and advised Cummings of his right to appeal that determination to the zoning board of appeals. 8 No appeal was filed by Cummings.

No other complaint to the zoning authorities was made by Daniel Cummings for more than six years. "During this period of time, the defendants continued to use [the] property and invest their time and funds in it relying upon the fact that there was no question as to their right to use this property as rental property."

On July 10, 1981, a large number of residents of the River Road community sent a petition to the first selectman of East Lyme, Richard Lougee, complaining of " 'numerous and flagrant zoning violations' occurring at the Cozy Nest and requesting that action be taken." Subsequent to sending the petition, representatives of the River Road community met with Lougee and Busch regarding the complaints in the petition. Busch "stated his conclusion that the defendants' use of the property did not violate the zoning regulations and he again advised the plaintiffs of their right to have his decision reviewed by the Zoning Board of Appeals." No appeal was taken.

In June, 1982, the plaintiffs commenced an action seeking injunctive relief and damages from an alleged violation of the East Lyme zoning regulations and an alleged common law private nuisance. The defendants counterclaimed for damages. After an evidentiary hearing, the trial referee concluded, inter alia: (1) the use of the cottages in June, July and August is a valid nonconforming use, since that use existed prior to 1945 and has never been abandoned; (2) the winterization and other improvements of the cottages do not constitute an illegal extension of the original nonconforming use; (3) rental of the cottages on a daily rather than weekly basis is not an illegal extension of the original nonconforming use; (4) the use of the dwelling by other than a single family violates the zoning regulations and will, if continued, cause the plaintiffs irreparable damage and harm; (5) rental of the seven cottages other than in the months of June, July and August is an illegal extension of the original nonconforming use and will, if continued, cause the plaintiffs irreparable damage and harm; and (6) the use of the property made by the defendants is "not unreasonable nor a nuisance." The trial referee also concluded that the plaintiffs have suffered a total of $8000 in damages and that the plaintiffs were not required to exhaust their administrative remedies.

The trial referee recommended that the court (1) enjoin the defendants from renting the cottages at times other than the months of June, July and August, (2) enjoin the defendants from renting the dwelling other than to a single family, (3) award damages to each of the plaintiffs in specific amounts, and (4) render judgment for the plaintiffs on the defendants' counterclaim.

Both parties filed objections to certain conclusions and recommendations. On March 10, 1986, the trial court, Hendel, J., set aside the conclusions and recommendations concerning damages and rendered judgment in accordance with the remainder of the report. On May 30, 1986, in response to the plaintiffs' motion for articulation, the court filed an articulation of its memorandum of decision. Both parties appealed from the judgment.

On appeal, the defendants claim that the trial court erred in concluding that (1) the plaintiffs were not required to exhaust their administrative remedies; (2) the defendants' use of the dwelling is illegal; (3) the use of the cottages for year-round rental constitutes an illegal extension of a nonconforming use in violation of the zoning regulations; (4) the plaintiffs were not guilty of laches; and (5) the plaintiffs are entitled to injunctive relief.

On the cross appeal, the plaintiffs claim that the court erred in concluding that (1) a nonconforming use exists as to the cottages; (2) daily rental of the cottages is not an illegal extension of any existing nonconforming use; and (3) the plaintiffs were not entitled to damages.

I

The defendants' first claim is that the trial court erred in concluding that the plaintiffs were not required to exhaust their administrative remedies. We disagree.

Before trial, the defendants filed a motion for summary judgment claiming that the plaintiffs failed to exhaust their administrative remedies. The court, Mack, J., characterized the motion as "in effect a motion to dismiss for lack of subject matter jurisdiction" and framed the issue as "whether the court lacks subject matter jurisdiction because of the plaintiffs' failure to exhaust administrative remedies." The court correctly analyzed the issue by considering the allegations of the complaint in a light most favorable to the plaintiffs. See Brewster v. Brewster, 152 Conn. 228, 233, 206 A.2d 106 (1964). In denying the motion, the court relied upon Reynolds v. Soffer, 183 Conn. 67, 71, 438 A.2d 1163 (1981), holding that the failure to appeal the inaction of the building inspector in enforcing the town zoning regulations to the zoning board of appeals did not preclude the defendants from bringing an action for injunctive relief against such violations.

"It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977); State ex rel. Golembeske v. White, 168 Conn. 278, 282, 362 A.2d 1354 (1975); see 3 Davis, Administrative Law § 20.01; General Statutes §§ 4-175, 4-183." Connecticut Mobile Home Assn., Inc. v. Jensen's, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979). Despite this principle, in Reynolds we held that " '[a]ny 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 [without exhausting administrative remedies]. Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 180, 377 A.2d 280 [1977]; Fitzgerald v. Merard Holding Co., 106 Conn. 475,...

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