Tomasso Bros., Inc. v. October Twenty-Four, Inc.

Decision Date09 August 1994
Docket NumberTWENTY-FOU,No. 14642,INC,14642
CourtConnecticut Supreme Court
PartiesTOMASSO BROTHERS, INC. v. OCTOBER, et al.

Peter J. Zagorsky, Plainville, for appellants (defendants).

John R. Fornaciari, pro hac vice, with whom were James H. Throwe, East Hartford, and, on the brief, Stephen J. Anderson and Carl R. Ficks, Jr., New Britain, for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, BORDEN, NORCOTT and KATZ, JJ.

BORDEN, Associate Justice.

The principal issue in this appeal is whether a permanent prohibitory injunction is automatically stayed by the filing of an appeal by the enjoined party. This case returns to us after the trial court, on remand, determined that a permanent prohibitory injunction should issue in order to protect the plaintiff's use of its property from a nuisance arising from the defendants' use of their adjoining property.

The plaintiff, Tomasso Brothers, Inc., brought an action against the defendants, October Twenty-Four, Inc. (October Twenty-Four), and A. Aiudi and Sons (Aiudi), 1 alleging that the defendants' operation of a quarry on property abutting that of the plaintiff violated applicable zoning regulations and constituted a nuisance. The trial court, O'Neill, J., issued an injunction that prohibited the defendants from continuing to operate the quarry. The defendants appealed from the judgment granting the injunction. While the appeal was pending in this court, the plaintiff modified its development plans for the property. Although we ruled on some of the issues raised on appeal; see footnote 3; we remanded the case to the trial court to determine the continued propriety of the injunction in light of the plaintiff's modified plans. Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 203, 602 A.2d 1011 (1992) (Tomasso I ).

After additional hearings, the same trial court again enjoined the defendants from further quarrying. The defendants appealed 2 from this judgment, claiming that the trial court had improperly: (1) found that the defendants' activities constituted a nuisance; 3 and (2) enjoined the defendants from further quarrying. The defendants continued to quarry while the appeal was pending, however, and consequently the trial court held them in contempt. The defendants then amended their appeal by adding claims that the trial court had improperly: (1) concluded that Practice Book § 4046 did not automatically stay the injunctive order pending resolution of their appeal; and (2) found the defendants in contempt. We affirm the judgments of the trial court.

The trial court's memoranda of decision reveal the following facts. October Twenty-Four owns a thirty-eight acre parcel of land in Plainville, on which it permits Aiudi to drill, blast, excavate and remove trap rock for use in Aiudi's concrete business. This parcel of land abuts a twenty-eight acre parcel owned by the plaintiff. The plaintiff's property is zoned for a technology park and October Twenty-Four's property is zoned for residential use.

The plaintiff had originally intended to develop its property into an office park with a 100 room hotel. In its original memorandum of decision, the trial court found that the quarrying activity on October Twenty-Four's property constituted a common law nuisance and adversely affected the plaintiff's plans for development. The trial court therefore enjoined the defendants from further quarrying. 4

While the appeal from that first judgment was pending, the plaintiff modified its development plan. Specifically, the plaintiff deleted the building intended to be used solely as a hotel and substituted a building intended to be used only partly for residential purposes. The planned substitute building is a four story office conference center with forty small rooms for overnight accommodations, in addition to training rooms, conference rooms and food service with dining facilities. The substitute building would be located approximately 130 feet closer to October Twenty-Four's property line than the hotel would have been, and approximately fifty feet closer than the hotel to the site of the blasting operation.

In Tomasso I, we determined that these changes in the plaintiff's plan had caused the defendants' appeal from the injunctive order to become moot. Rather than reviewing the trial court's assessment of an outdated development plan, we remanded the case to the trial court to reexamine the equitable considerations relevant to the issuance of the injunction in light of the changed circumstances. See footnote 3.

In its memorandum of decision following the remand, the trial court found that, with respect to the proposed development of the property, the plaintiff had received approvals from certain municipal authorities 5 and that it had applied for the remaining necessary approvals. Furthermore, the court found that the plaintiff had reached agreements concerning the provision of electrical, telephone and natural gas utilities, and had made progress towards the provision of sewer and water utilities. The court also found that financing for the project would still be available if the defendants' quarrying operation was terminated. The court had previously found that halting the defendants' quarrying activity was necessary to permit the plaintiff to seek and secure financing and tenants.

The court further found that the defendants' quarrying activity was continuing at about the same frequency and intensity as it had before Tomasso I, 6 and that in view of the material available it could continue at that level for another seven or eight years. The court also found, however, that the defendants had taken measures to reduce the noise. Specifically, it found that the machine that had been used to break large rocks had been removed and alternative methods were being used to break rocks on the site. The trucks used to transport rocks had been lined with steel and rubber belts, and sand had been placed in their beds. Further, the freestanding compressors had been removed from the property and a new hydraulic drill had replaced the old pneumatic drill. Moreover, the defendants proposed to the court additional steps that could further reduce the noise emanating from the quarry.

The trial court reviewed substantial evidence of the effect of the defendants' quarrying operation on the plaintiff's development plans. The court viewed the site and site plans, compared noise levels while quarrying activity was occurring with ambient noise levels, and made detailed findings of fact. The trial court concluded that the sound from the quarry remained "annoying and unacceptable to persons who would be expected to use the [substitute building] for meetings, conferences and meals." The court therefore reaffirmed its conclusion that the quarry constituted a nuisance to the plaintiff.

Regarding the injunction, the court found that the plaintiff was irreparably harmed by the nuisance and that it had no adequate remedy at law. After hearing evidence concerning the effect that closing the quarry would have on Aiudi's business, the court "balance[d] the harms and benefits to all the parties." The court concluded that "the equities are overwhelmingly in favor of the plaintiff" and issued an injunction virtually identical to the injunction issued in Tomasso I. 7 This appeal followed.

I

The defendants first claim that the trial court improperly granted the plaintiff injunctive relief. Specifically, the defendants contend that the trial court improperly: (1) concluded that the plaintiff was irreparably harmed and had no adequate remedy at law; (2) balanced the benefits to the plaintiff against the hardships to the defendants; and (3) exceeded its authority by issuing an unduly restrictive injunction. We disagree.

The defendant correctly states the law germane to the granting of injunctive relief. " 'A party seeking injunctive relief has the burden of proving irreparable harm and lack of an adequate remedy at law.' " Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). The request for injunctive relief is addressed to the sound discretion of the trial court. Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992). "In exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction." Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972). "The issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier." (Internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 90, 527 A.2d 230 (1987). "[T]he court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion." Walton v. New Hartford, supra, 223 Conn. at 165, 612 A.2d 1153.

The trial court in this case acted well within its discretion in determining that the plaintiff was irreparably injured and had no adequate remedy at law. The court determined that the plaintiff had progressed significantly towards accomplishing its development plans, and that its plans were legally and financially feasible. Indeed, the court heard testimony that the plaintiff's property was even more marketable with the proposed conference center than it had been with the proposed hotel. Furthermore, the court found that the noise emanating from the quarry was one of the major remaining obstacles to the plaintiff's project because the plaintiff needed to build the basic infrastructure before it could seriously market the project, and the undertaking of such expenditures could not be expected while the quarry remained in operation.

Continuing nuisances, such as the production of noise to the detriment of one's neighbor, have traditionally been considered suitable grounds for equitable relief. See, e.g., Cummings v. Tripp,...

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