Town of Bozrah v. Chmurynski, Nos. 18424

• Decision Date: 14 February 2012
• Docket Number: 18354,18356.,Nos. 18424,18355
• Citation: 303 Conn. 676,36 A.3d 210
• Court: Connecticut Supreme Court
• Parties: TOWN OF BOZRAH et al. v. Anne D. CHMURYNSKI et al.

303 Conn. 676

36 A.3d 210

TOWN OF BOZRAH et al.

v.Anne D. CHMURYNSKI et al.

Nos. 18424

18354

18355

18356.

Supreme Court of Connecticut.

Argued Oct. 17, 2011.Decided Feb. 14, 2012.

Richard S. Cody, New Haven, with whom, on the brief, were Jon B. Chase, Mystic, and Adrienne Maciulewski, for the appellants and the plaintiffs in error (Anne D. Chmurynski et al.).

Russell N. Jarem, with whom, on the brief, were Dana B. Lee, Hartford, and Michael C. Conroy, for the appellees and the defendants in error (town of Bozrah et al.).

Christopher J. Smith and Beth Bryan Critton, Hartford, filed a brief for the Connecticut Chapter of the American Planning Association et al. as amici curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

McLACHLAN, J.

In this consolidated appeal, we must balance the public interest in allowing municipalities to inspect residential property for zoning violations against the individual's constitutional right to be free from unreasonable searches. The defendants appeal ¹ from the temporary injunction granted by the trial court requiring them to allow the plaintiffs, the town of Bozrah (town) and Thomas Weber, the town's zoning enforcement officer, to inspect their property for zoning violations. The defendants claim that the trial court's order violates their right to be free from unreasonable searches and seizures. We agree with the defendants, and, accordingly, reverse the order of the trial court.²

The record discloses the following facts and procedural history, either as found by the trial court or undisputed. In August, 2007, Weber received an e-mail from the town's first selectman, stating: “ ‘Please do an inspection of 135 Scott Hill Road for unregistered motor vehicles and other junk.’ ” Weber traveled to 135 Scott Hill Road (property), where the five defendants reside. As Weber testified, he intended to inspect the property for “junk,” including unregistered cars, in violation of §§ 2.20 and 10.4 of the Bozrah zoning regulations.

Upon Weber's arrival at the property, he first encountered Dale Bishop. Bishop referred him to Michael Chmurynski, who expressly refused to consent to an inspection of the property. Michael Chmurynski instructed Weber to seek an inspection through the town attorney. Although Weber did not search the property during this visit, he did observe approximately six vehicles by the driveway. He testified that the vehicles did not appear to be in disrepair and that they had license plates, but he was unable to determine from his vantage point whether the plates contained a valid registration date.

After a discussion with the town attorney, Weber returned to the property on September 1, 2007. Again, Michael Chmurynski refused to let Weber inspect the property. Sometime after the second meeting, a fence was erected on the property, preventing Weber from viewing certain portions of the property from the street. The plaintiffs then brought the present action seeking a temporary and permanent injunction to enjoin Anne D. Chmurynski and Walter Chmurynski, as owners and residents of the property,³ from refusing to consent to an inspection of the property.

Following a hearing on the plaintiffs' request for a temporary injunction, the trial court issued a memorandum of decision, authorizing Weber to inspect the property and ordering the defendants to “desist and refrain from interfering with or hindering in any way the [zoning enforcement officer] in the conduct of his inspection.” The court observed that state and local zoning regulations authorize a zoning enforcement officer to inspect and remedy any zoning violations. Further, the trial court stated that the only way a zoning enforcement officer can execute these duties when a property owner has refused to consent to a search is to conduct an inspection of the property pursuant to a judicial order. Although General Statutes § 54–33c (a), the statute that sets forth the procedure for applying for search warrants, does not appear to apply outside the criminal context, the court found that the apparent lack of an adequate remedy at law buttressed its equitable power to issue an injunction to effect the same result as a warrant. Recognizing that an inspection pursuant to such an injunction must comply with the fourth amendment to the United States constitution, the court cited the United States Supreme Court's decision in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), for the proposition that inspections in nonemergency circumstances are reasonable within the meaning of the fourth amendment when a reasonable governmental interest in such a search exists. The court then concluded that the reasonable governmental interest in stabilizing property values and promoting the general welfare justified an inspection in the present action, and granted the temporary injunction preventing the plaintiffs from refusing to allow the inspection. The defendants subsequently moved for a stay of execution, which the trial court granted. This consolidated appeal followed.

Preliminarily, we observe that the order being appealed is labeled a temporary injunction. As a general rule, a decision either granting or denying a temporary injunction is not a final judgment and, therefore, is not immediately appealable. Massachusetts Mutual Life Ins. Co. v. Blumenthal, 281 Conn. 805, 811, 917 A.2d 951(2007). In substance, however, the trial court's order functioned as a permanent injunction. The purpose of a temporary injunction is to “[maintain] the status quo while the rights of the parties are being determined,” while “a permanent injunction effects a final determination of [those] rights.” (Internal quotation marks omitted.) Id. In the present case, the order was not issued as a temporary measure until the court could permanently determine the rights of the parties. Instead, the court made a final determination that the town could search the property over the objection of the defendants. Therefore, notwithstanding the trial court's characterization of its order as a temporary injunction, we view the order as an appealable final judgment.

The defendants claim that the trial court's order authorizing the zoning inspection of their property violates their fourth amendment right to be free from unreasonable searches and seizures. Specifically, the defendants claim that, before conducting an inspection of their property, the plaintiffs were required to obtain a warrant supported by a finding of probable cause. Because the defendants' claim presents a question of law, our review is plenary. State v. Brown, 299 Conn. 640, 650, 11 A.3d 663 (2011). In order for us to resolve this issue, we must consider whether the trial court properly concluded that: (1) the reasonableness requirement of the fourth amendment applies to zoning inspections; (2) that requirement is satisfied if the government can demonstrate that the search furthers a reasonable governmental interest; and (3) the proper procedural vehicle by which to determine whether such an inspection should be authorized is by seeking a court-ordered injunction. When, as here, the proposed search is not part of a periodic or area inspection program, we conclude that the reasonableness requirement of the fourth amendment applies and is satisfied when a judicial officer orders a search upon a showing by municipal authorities that probable cause exists to believe that a zoning violation will be discovered upon inspection of the premises. We further conclude that an injunction is an appropriate procedural vehicle through which a municipality may seek judicial authorization to conduct a zoning inspection. Because the trial court did not apply the correct standard in making its finding of probable cause, we reverse the trial court's judgment.

We first turn to the relevance of the fourth amendment to zoning inspections under General Statutes § 8–12, which authorizes a zoning official “to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter....” ⁴ The fourth amendment to the United States constitution, which is made applicable to the states through the fourteenth amendment; see Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. “A ‘search’ for purposes of the [f]ourth [a]mendment occurs when a reasonable expectation of privacy is infringed.” Segura v. United States, 468 U.S. 796, 820, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Although “the [f]ourth [a]mendment protects people, not places”; Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); the United States Supreme Court has recognized that the “curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept.” Dow Chemical Co. v. United States, 476 U.S. 227, 235, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); see also State v. Ryder, 301 Conn. 810, 822, 23 A.3d 694 (2011).

The primary purpose of the fourth amendment is to “safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court, supra, 387 U.S. at 528, 87 S.Ct. 1727. In Camara, the United States Supreme Court held that the fourth amendment applies to searches and seizures in the civil as well as...