Town of Beacon Falls v. Posick

• Decision Date: 21 October 1988
• Docket Number: No. 6357,6357
• Citation: 549 A.2d 656,17 Conn.App. 17
• Court: Connecticut Court of Appeals
• Parties: TOWN OF BEACON FALLS et al. v. Stephen M. POSICK.

Page 656

549 A.2d 656

17 Conn.App. 17

TOWN OF BEACON FALLS et al. v. Stephen M. POSICK.

No. 6357.

Appellate Court of Connecticut.

Argued Sept. 14, 1988.

Decided Oct. 21, 1988.

Milo J. Altschuler, Seymour, for appellant (defendant).

Robert F. Carter, New Haven, for appellees (plaintiffs).

Before DUPONT, C.J., and BORDEN and BIELUCH, JJ.

BIELUCH, Judge.

The town of Beacon Falls and its zoning and planning commission brought this action against the defendant landowner seeking a penalty under a town ordinance, and an injunction under its zoning regulations and the general statutes because of his operation of a bulky waste disposal area ¹ pursuant to a permit issued by the department of environmental protection (DEP). The defendant has appealed from the judgment of the trial court in favor of the plaintiffs. We find error.

The plaintiffs' revised complaint contains two counts. For the purposes of this opinion, we need only to summarize the material factual allegations. The defendant owns and operates a dumping ground for demolition and other waste materials, also known as a bulky waste disposal area, (hereinafter dump) on property at 460 Lopus Road. Such a dump is prohibited by the following ordinance adopted at a town meeting on March 16, 1954: "Section 1. No garbage, rubbish, waste material, refuse or tin cans shall be dumped within the limits of the Town. Section 2. No dumps or commercial piggeries shall be permitted within said Town limits, with the exception that the Town of Beacon Falls shall be permitted to maintain one dump at all times within the Town Limits for its purpose. Section 3. This ordinance shall not affect any existing dumps or piggeries at the present time. Section 4. This Ordinance shall become effective thirty days from the date hereof. Any person who shall wilfully violate any provision of this Ordinance shall pay a penalty not to exceed $25.00 for each and every offense. All sums paid as penalties shall be retained by the Town for its use." Dumps, other than one maintained by the town, are not an authorized use of property. They are prohibited under the provisions of the zoning regulations.

The second count adds the following allegations to those of the previous count: On June 9, 1982, the zoning enforcement officer served upon the defendant an order to discontinue the use of his land as a dump in violation of the town ordinance and zoning regulations and of General Statutes (Rev. to 1981) § 19-524b(c), recodified as General Statutes (Rev. to 1983) § 22a-208(c). ² The defendant's dump is a solid waste facility within the meaning of § 22a-208(c). ³ The defendant did not appeal to the zoning board of appeals from the order of discontinuance.

The plaintiffs sought the following in their claims for relief: Temporary and permanent injunctions together with costs and reasonable attorney's fees under General Statutes § 8-12, and an award of $25 per day of each day of operation of the dump under the antidumping ordinance of March 16, 1954.

In addition to denying the material allegations, the defendant alleged the following special defenses: (1) by its inaction, the town had waived its right to contest the permits obtained by the defendant from the DEP on July 10, 1978, and on May 5, 1982, for the operation of a bulky waste disposal area on his property; (2) the zoning enforcement officer's order is void; (3) to the extent that they conflict with the permits granted by the DEP, the town zoning regulations are preempted by the state laws and regulations under which the permits were granted; (4) the zoning regulations prohibiting the use of any property as a dump are unconstitutional; (5) the town failed to appeal from the granting of the defendant's permits by the DEP; (6) since no action was taken on the order of discontinuance served on June 9, 1982, until the commencement of suit on December 21, 1983, the action is invalid because of the violation of the defendant's constitutional rights and substantial prejudice and harm caused him by such delay; and (7) the town waived its right to contest the defendant's use of his property under the DEP permits by its prior refusal to grant a zoning hearing.

After the defendant's response to the plaintiffs' request for admissions, the plaintiffs moved for summary judgment on the ground that there was no genuine issue as to any material fact. The defendant, in turn, moved for summary judgment on the ground that there were no material facts in dispute as to the special defense of preemption. Summary judgments were denied both to the plaintiffs and to the defendant. The court, Kulawiz, J., ruled that the local zoning regulations were not preempted by the DEP permit and that there were numerous questions of fact to be determined by the trier.

Trial was concluded on July 18, 1986, at which time the court, Joseph J. Chernauskas, state trial referee, issued a temporary injunction restraining the defendant from using his property for dumping, depositing, storing or landfilling any solid waste, bulky waste or hazardous waste material and fixed a briefing schedule. Because of the defendant's failure to file a brief after receiving extensions of time, the court's memorandum of decision was delayed until August 19, 1987. The court found for the plaintiffs on the revised complaint and against the defendant on his special defenses.

The trial court made the following relevant findings with regard to the plaintiffs' complaint: (1) the defendant began a commercial dumping operation on a two acre site about 1979; (2) on June 9, 1982, the defendant was served with an order from the zoning enforcement officer to discontinue the use of his land as a dump in violation of the ordinances and zoning regulations; (3) the defendant failed to appeal that order; (4) the defendant thereafter dumped, or permitted to be dumped, 100,000 cubic yards of waste material on a six acre site; (4) the dumping of garbage, rubbish and waste material in the town is prohibited by the ordinance passed on March 16, 1954, which provides for "a penalty not to exceed $25.00 for each and every offense"; (5) on July 19, 1978, the defendant obtained a bulky waste disposal area permit for his property from the DEP, and another permit on May 21, 1982; (6) "[t]his 1982 DEP permit was expressly contingent on compliance with local laws and regulations " (emphasis in original); (7) the DEP permit process did not include any investigation of whether the dumping operation complied with town ordinances or zoning regulations; and (8) the defendant wilfully continued his dumping operation in violation of General Statutes § 8-12 ⁴ after receipt of the cease and desist order.

Addressing the defendant's special defenses, the court found for the plaintiffs on each of the affirmative claims. The court made these relevant findings: (1) the issue of preemption was previously decided by another court, Kulawiz, J., on the cross motions for summary judgment; (2) the facts adduced at trial substantiate the pretrial holding that "[l]ocal zoning regulations have not been preempted by the DEP regulations," and that ruling "is adopted into this memorandum of decision"; (3) the defendant's failure to appeal the cease and desist order bars him from contesting it in this enforcement action; (4) the defendant's claim that the order to discontinue the violation is void and of no force or effect "is without merit"; (5) by his failure to appeal the cease and desist order, the defendant cannot now contest the validity of the regulations; (6) the town's prohibition of commercial dumps through its ordinance and regulations is clearly constitutional; (7) the plaintiffs were not obligated to intervene in the DEP permit proceedings; (8) the defendant's 1982 permit "by its own terms requires adherence to the town's ordinances and zoning regulations"; (9) the defense of prejudice or laches is without merit; and (10) the defendant is without standing to complain of the rejection of a zoning application filed by another person without a hearing.

The court denied the plaintiffs' claim for a penalty under the antidumping ordinance of 1954 of $25 per day for the period of 1499 days between the cease and desist order and the issuance of the temporary injunction.

With respect to the claim for a permanent injunction, the court found that "the allegations of the complaint [were] established by clear and convincing proof." ⁵ A permanent injunction was issued, therefore, enjoining the defendant "from engaging in any private or commercial plan or scheme to dump, grind, deposit, store or landfill, or cause or permit such dumping, grinding, depositing, storing, or landfilling, any solid waste, bulky waste, or hazardous waste material, by whatever means" on his property. Finding that the defendant's violations were wilful, the court, at the request of the plaintiffs, ordered the payment of a civil penalty of $500 under General Statutes § 8-12. In addition, the court allowed costs and reasonable attorney's fees.

The defendant's first three claims of error are interrelated. These claims are: (1) the trial court erred in denying the defendant's motion to dismiss because it had no jurisdiction on any issue concerning the DEP permits; (2) the DEP regulations and permits preempt local zoning regulations that conflict with them relative to solid and bulky waste disposal; and (3) the absolute prohibition by the plaintiff town of the use of land as a solid or bulky waste disposal area is not a valid exercise of its police power and is not supported by any rational reason. These three claims encompass the single issue of whether the provisions of the state Solid Waste Management Act, General Statutes (Rev. to 1981) §§ 19-524a through 19-524o, ⁶ under which the defendant obtained a permit for the operation of a bulky waste disposal area, preempt the town's antidumping ordinance and zoning regulations prohibiting the establishment of a private...