Walsh v. Stonington Water Pollution Control Authority

• Decision Date: 24 August 1999
• Docket Number: (SC 15977)
• Citation: 736 A.2d 811,250 Conn. 443
• Court: Connecticut Supreme Court
• Parties: JOSEPH WALSH, JR., ET AL. v. TOWN OF STONINGTON WATER POLLUTION CONTROL AUTHORITY ET AL.

250 Conn. 443

736 A.2d 811

JOSEPH WALSH, JR., ET AL. v. TOWN OF STONINGTON WATER POLLUTION CONTROL AUTHORITY ET AL.

(SC 15977)

Supreme Court of Connecticut.

Argued June 2, 1999.

Officially released August 24, 1999.

Callahan, C. J., and Norcott, Katz, Palmer and Peters, JS. Timothy S. Fisher, with whom were Patrick Caruso and, on the brief, Charles Ray, for the appellants (defendants).

Gilbert Shasha, with whom was Conrad Ost Seifert, for the appellees (plaintiffs).

Mary-Michelle U. Hirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

John E. Hudson filed a brief for the Sierra Club as amicus curiae.

Opinion

NORCOTT, J.

The defendants, the town of Stonington water pollution control authority and the town of Stonington,¹ appeal from a jury verdict in favor of the plaintiffs, Joseph Walsh, Jr., Claire Walsh, James Stewart and Ruth Stewart, awarding them damages in the framework of a common-law private nuisance cause of action for harm caused by odors emanating from the defendants' operation of a sewage treatment plant (plant) on land located near the plaintiffs' residences. In this appeal, the defendants claim that the trial court improperly: (1) instructed the jury that it could find the "unreasonable use" element of the nuisance action based solely on harm to the plaintiffs, instead of the jury being required to balance the harm to the plaintiffs against such factors as the social utility of the defendants' use of the land in conformity with the mandate of the department of environmental protection (department); (2) refused to direct a verdict for the defendants despite the fact that the plaintiffs' nuisance claim was barred by collateral estoppel because of prior findings concerning the land by the department; (3) failed to dismiss the action even though the defendants are immune from common-law nuisance actions when they engage in conduct mandated by law and approved by permit; and (4) granted each of the four plaintiffs a set of peremptory challenges despite the fact that, as married couples who jointly own the respective properties, they had a unity of interest such that under General Statutes § 51-241, each couple should have been granted only a single set of peremptory challenges. We affirm the judgment of the trial court on all issues.

The record discloses the following relevant facts. The plaintiffs, who are two married couples living on parcels of land abutting the defendants' plant brought an action against the defendants alleging, inter alia, that they had created, maintained and permitted a continuing nuisance to exist that harmed the plaintiffs' respective properties.² The manifestation of the alleged nuisance consisted of insects and unreasonable odors that arose from the operation of the plant.

Shortly after the plant began processing septage, "the [water pollution control authority] applied to the [department] for a renewal of its discharge permit.³ See General Statutes § 22a-430. The [commissioner of environmental protection (commissioner)] appointed a hearing officer, who held a public hearing at which several citizens objected to the permit on the ground that the treatment plant was a source of odors. After the close of the hearing, one or more of the citizens filed a petition for intervention pursuant to General Statutes § 22a-19, asserting that the odors from the treatment plant constituted unreasonable pollution under the [Connecticut Environmental Protection Act (act)]. The petition was granted, and the hearing officer considered the substantive allegations therein.

"In his proposed final decision, the hearing officer found that the evidence in the record did not support the conclusion that the odors constituted unreasonable pollution. The hearing officer also determined that there was no reasonable or prudent alternative to the continued operation of the treatment plant. Accordingly, the hearing officer recommended the renewal of the permit. "At oral argument as to whether the [commissioner] should accept the hearing officer's proposed final decision, the [water pollution control authority] requested that the hearing be reopened to allow [it] to submit evidence regarding the allegations in the intervenors' petition. The [commissioner] denied this request and subsequently issued his final decision on the [water pollution control authority's] application.

"In his final decision, the [commissioner] did not accept the hearing officer's proposed finding that the odors did not constitute unreasonable pollution under the act. The [commissioner], instead, determined that the testimony at the public hearing supported a finding of unreasonable pollution. The [commissioner] nevertheless issued the permit, with a condition addressing the odor problems, because there was no feasible and prudent alternative to the continued operation of the plant. Subsequently, after the [water pollution control authority] had agreed to undertake certain measures to address the odors, an administrative consent order was substituted for that condition and the permit was reissued without any condition relevant to the odor problem." Water Pollution Control Authority v. Keeney, 234 Conn. 488, 490-91, 662 A.2d 124 (1995).

At trial, evidence was presented including, inter alia, the testimony of the four plaintiffs that, at various times, the plant emitted sewage odors, a rotten egg-like odor, diesel odors, a sweet odor and a chlorine odor. The presence of these odors caused symptoms such as coughing, vomiting, headaches, and a burning sensation to the lips and eyes. According to the complaint, the odors became intolerable by the summer of 1990. The case went to trial in September, 1997.

After a trial, the jury returned a verdict for the plaintiffs. In accordance with that verdict, the trial court ordered the defendants to pay damages to the plaintiffs in the amount of $675,000. Following the trial court's denial of their motions to dismiss and to set aside the verdict, the defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). Additional facts will be provided as necessary.

I

The defendants first contend that the trial court improperly instructed the jury on the "unreasonable use" element of common-law private nuisance.⁴ Specifically, the defendants argue that the charge was improper because the trial court failed to instruct the jury expressly that, in determining the reasonableness or unreasonableness of the defendants' use of the land, the jury was required to balance the harm to the plaintiffs against such factors as the social utility of the defendants' use of the land in conformity with the mandate of the department. We disagree with the defendants' argument.

The trial court gave the following instruction to the jury concerning unreasonable use.⁵ "To establish a nuisance, the plaintiffs must prove certain things. The first is that the condition was such that in its very nature was likely to inflict harm by producing odors or insects in such a manner as to unreasonably interfere with [the] plaintiffs' enjoyment of each of their properties.

"The second requirement is that the condition was a continuing one. By that, I mean simply that it must be more than a temporary condition springing from a particular or isolated act or failure to act on the part of the defendants, that it has to have continued in existence for some appreciable length of time, continuing as opposed to temporary, is what this element is about.

"A third requirement which must be met is that the use made of the property by the defendants was unreasonable or unlawful. Now there's no doubt that the [defendants were] making a lawful use of the property. You need give no thought to that requirement, but you must decide whether the use the town was making of the property was a reasonable use. You must consider the location of the condition and any other circumstances that you find proven which indicate whether the defendants [were] making a reasonable use of the property. Now, that's not to suggest that the mere use of the property for a sewer treatment plant is reasonable or unreasonable. Clearly, that's a reasonable use of property and the plaintiffs don't claim otherwise. So although this is phrased in our law as a separate and third requirement, if you don't find that the plant is producing odors or insects in such a manner as to unreasonably interfere with the plaintiffs' enjoyment of their property, then you don't really need to worry about the third [burden]. If you find that the plant is producing odors—or was or is producing odors or insects, that is the use of the property that you will find that is either reasonable or unreasonable. [The] [p]laintiffs must prove that the use of the property as they have proven the property to be used was—to have been used was unreasonable, and that's [the] plaintiffs' third burden. "The fourth requirement is that you must determine whether the harm which came to the plaintiffs was harm which the condition caused by the defendants had a natural tendency to produce. If the plaintiffs [have] proved to you by a fair preponderance of the evidence the existence of all the circumstances that the condition on the defendants' property was such that in its very nature it was likely to inflict injury upon the person or upon the property of the plaintiffs, that the condition was a continuing one, that the use that the defendants [were] making of its property was not a reasonable one and that the harm, which came to the plaintiffs was harm which the condition had a natural tendency to produce, then the plaintiffs [have] established the existence of a nuisance."

The trial court went on to explain each of the interrogatories⁶ to the jury. Concerning interrogatory number five, which addressed the unreasonable use element of...