Sound Trefoil, LLC v. Old Mine Associates, LLC, No. CV05 4012487S (CT 11/9/2005), CV05 4012487S

• Decision Date: 09 November 2005
• Docket Number: No. CV05 4012487S,CV05 4012487S
• Court: Connecticut Supreme Court
• Parties: Sound Trefoil, LLC v. Old Mine Associates, LLC et al. Opinion No.: 90903

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Unpublished Opinion

Sound Trefoil, LLC v. Old Mine Associates, LLC et al. Opinion No.: 90903

No. CV05 4012487S

Superior Court of Connecticut

Judicial District of Fairfield at Bridgeport

November 9, 2005

MEMORANDUM OF DECISION RE TEMPORARY RESTRAINING ORDER AND TEMOPORARY INJUNCTION

RICHARD E. ARNOLD, JUDGE.

On October 17, 2005, the plaintiff filed an application for an order to show cause seeking an ex parte temporary restraining order and temporary injunctive relief. The court, acting by Gilardi, J., refused to grant ex parte relief and ordered a show cause hearing on the application for Monday, October 24, 2005. Thereafter, the matter was rescheduled for Monday, October 31, 2005 when the parties appeared and presented evidence to this court. Upon the conclusion of a brief evidentiary hearing, the court ordered that those parties wishing to file a memorandum of law, do so no later than 5 p.m. on Friday, November 4, 2005. The court is in receipt of a memorandum of law from the plaintiff Sound Trefoil, LLC and the defendant Old Mine Associates, LLC. No memorandum of law was received by the defendant Planning and Zoning Commission.

The plaintiff has filed a signed copy of a verified complaint and summons containing three counts. The First Count is directed to both defendants and seeks temporary and permanent injunctive relief. The Second Count seeks a declaratory judgment against both defendants. The Third Count, directed toward defendant Old Mine Associates, LLC only, alleges a violation of General Statutes §22a-42a(c)(2).¹

In the First Count, the plaintiff, Sound Trefoil, LLC (Trefoil) alleges that it is the owner and contract purchaser of real property located at 9 and 19 Trefoil Avenue and 41, 42, 49 and 53 Monroe Turnpike in Trumbull, Connecticut, and, as such, "owns a beneficial and economic interest in said real property. Plaintiff further alleges that the defendant Old Mine Associates, LLC. (Old Mine) owns real property at 80 and 90 Monroe Turnpike, Trumbull, Connecticut (the "Property"), which is on the other side of Monroe Turnpike from the property owned by Trefoil. On September 28, 2005, Old Mine filed an application for special permit approval with the Trumbull Planning and Zoning Commission (P&Z) relating to the proposed construction of a Home Depot Store on the "Property" owned by Old Mine.² Thereafter, the P&Z Commission scheduled a public hearing for October 19, 2005 to consider Old Mine's special permit application. The hearing was commenced on October 19, 2005 and has been continued to November 16, 2005 for further proceedings.

The plaintiff claims that Old Mine's proposed construction project "most likely" involves activities regulated pursuant to General Statutes §22a-36 through 22a-45,³ as well as a "Regulated Activity" as defined in Section 2.1⁴ of the Inland Wetlands and Watercourses Regulations of the Town of Trumbull, dated March 13, 2000⁵ (the "Regulations"). The plaintiff claims that Old Mine violated General Statutes §8-3c(a)⁶ by failing and neglecting to submit an application to the Inlands Wetlands and Watercourses Commission, on or prior to, the date that it filed its special permit application with the P&Z Commission. The plaintiff also claims that Old Mine violated Section 12A.1⁷ of the Regulations by failing and neglecting to file an application with the Inland Wetlands Commission in that it did not make a request for approval on a form provided by this Commission and it did not provide all the documentation and information set forth in Section 7.5⁸ of the Regulations. Nevertheless, the Assistant Town Engineer, acting on behalf of the Inland Wetlands Commission, approved Old Mine's proposed activity, by "ostensibly finding that the conduct of such activity would result in no greater than a minimal impact on any wetland or watercourse" and therefore proceedings before the Inland Wetlands Commission by Old Mine were not required.⁹

The plaintiff further alleges that Old Mine violated General Statutes §22a-42a(c)(2) and section 12A.2¹⁰ of the Regulations by failing to publish notice of such approval by the Assistant Town Engineer, in a newspaper having a general circulation in Trumbull, within ten days of the date of such approval, thereby denying and depriving Sound Trefoil of the right of appeal and due process. The plaintiff claims that monetary compensation for the deprivation of its statutory and due process rights are insufficient, and it has no adequate remedy at law. The plaintiff further claims it has suffered, and will continue to suffer irreparable harm unless injunctive relief is ordered enjoining the P&Z Commission from conducting the continued public hearing on November 16, 2005, to consider Old Mine's special permit application, and directing the P&Z Commission to deny the special permit application.

The Second Count requests a declaratory judgment declaring that Old Mine violated General Statutes §8-3c(a) in failing to submit a wetlands application to the Inland Wetlands Commission on or prior to the date that Old Mine filed its special permit application. A judgment is requested declaring that due to the alleged violation of section 8-3c(a), the P&Z Commission cannot conduct a public hearing to consider Old mine's special permit application on any date and ordering the P&Z Commission to deny said application. The plaintiffs also request that the court declare that Old Mine violated Section 12A.1 of the Regulations, General Statutes §22a-42a(c)(2) and Section 12A.2 of the Regulations.

The Third Count of the plaintiff's complaint repeats allegations in the First Count and additionally alleges that as a result of Old Mine's violation of General Statutes §22a-42a(c)(2), Old Mine is liable for civil penalties, plaintiffs fees and expenses and reasonable attorneys fees pursuant to General Statute §22a-44b. The plaintiff argues that the superior court has jurisdiction to restrain a continuing violation of §22a-42a(c)(2) and to issue orders directing the violation to be corrected or removed pursuant to General Statutes §22a-44b.¹¹

The defendant Old Mine, in objecting to the issuance of a temporary injunction, argues that the hearing at the P&Z Commission will be an opportunity for an open and detailed hearing at which time the plaintiff can address its concerns regarding its claims that the defendant's activities are, in fact, regulated by the inland wetlands statutes of the State of Connecticut. Further, Old Mine argues that the plaintiff can argue that the P&Z Commission may not legally "render a decision" on the special permit application of the defendant. Additionally, Old Mine argues that the plaintiff has not met its burden of proof before this court that the Old Mine's activities are, in fact, a regulated activity as defined by state statute and the Regulations of the Inland Wetland and Watercourses Commission of the Town of Trumbull. Lastly, the defendant argues that the temporary injunctive relief requested by the plaintiff is a harsh remedy and a request for the court to exercise an extraordinary power.

I Legal Standard Re Temporary Injunction

The legal standard for granting a temporary injunction in Connecticut is well-settled. The court must consider four factors: (1) irreparable and imminent injury; (2) lack of an adequate remedy at law; (3) the likelihood of success on the merits; and (4) that a balancing of the equities favors granting the injunction. Waterbury Teachers Ass'n v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). A temporary injunction is a court order issued at the outset or during the pendency of a case forbidding the performance or continuance of certain acts until the rights of the parties have been finally adjudicated. Deming v. Bradstreet, 85 Conn. 650, 84 A. 116 (1912).

"To obtain temporary injunctive relief the plaintiff must establish that protectable interests are at stake, that it will prevail, to a reasonable certainty, subsequent to a final hearing on its application for permanent injunction, as well as, irreparable injury and lack of an adequate remedy at law. Rhode Island Hospital Trust Nat. Bank v. Trust, 25 Conn.App. 28, 39, 592 A.2d 417 (1991); Covenant Radio Corporation v. Ten Eighty Corporation, 35 Conn.Sup. 1, 3, 390 A.2d 949 (1977). To obtain injunctive relief plaintiff bears the burden of proving facts which will establish irreparable harm. Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 544 A.2d 1207 (1988). Plaintiff must also show the lack of an adequate remedy at law. Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967). If the plaintiffs have an adequate remedy at law, then they are not entitled to the injunction. Mitchell v. Southern New England Telephone Co., 90 Conn. 179, 183, 96 A. 966 (1916). However, where a party seeks injunctive relief based on a statutory violation, the moving party is relieved of this burden. Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984).

"The principal purpose of such an injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." Deming v. Bradstreet, supra, 85 Conn. 659; see also, Olcott v. Pendleton, 128 Conn. 292, 22 A.2d 633 (1941). "In deciding whether it should be granted . . . the court is called upon to balance the results which may be caused to one party or the other, and if it appears that to deny . . . it may result in great harm to the plaintiff and little to the defendant, the court may well exercise its discretion in favor of granting . . . it, unless indeed, it is very clear that the plaintiff is without legal right." Rhode Island Hospital Trust Nat. Bank v. Trust, supra, 25 Conn.App. 39, 40; see also, Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 456-58, 493 A.2d 229 (1985).

The fact that the parties have not closed the pleadings places a limitation on the power or...