Zoning Commission of Sachem's Head Ass'n v. Leninski

Citation376 A.2d 771,34 Conn.Supp. 66
Decision Date27 August 1976
Docket NumberNo. 106333,106333
PartiesZONING COMMISSION OF SACHEM'S HEAD ASSOCIATION v. Steven LENINSKI.
CourtCourt of Common Pleas of Connecticut

Childress & Duncan, Guilford, for plaintiff.

Robert Mirto, West Haven, for defendant.

NORTON M. LEVINE, Judge.

The present application was initiated by the plaintiff in an attempt to enjoin the defendant, both temporarily and permanently, from erecting certain signs on his property and from opening to the public an area of a beach owned by him.

The plaintiff association exists pursuant to certain special acts of the General Assembly which initially were enacted in 1921 and thereafter were amended in 1931 and 1935. The parcels within the jurisdiction of the plaintiff lie within the town of Guilford. The present injunction action was based on alleged violations of a zoning ordinance of the plaintiff association which became effective December 1, 1970.

The defendant owns residential property situated within the jurisdiction of the plaintiff. His premises consist of two pieces divided by a public highway known as Falcon Road, which runs generally east and west at the division line. That portion of the defendant's premises north of Falcon Road is improved with four structures, each of which has been used as a summer dwelling. The piece south of Falcon Road is bounded on the south, to the extent of about 219 feet, by Long Island Sound; on the west by land of others; and on the east by a parcel owned by the plaintiff association.

The beachfront area owned by the defendant consists of rocky portions at the westerly end and a stretch of sand at the easterly end. On the southerly line of Falcon Road there is a retaining wall. Measurements were taken to determine the mean high water mark on the defendant's premises relative to Long Island Sound. The depth of the defendant's parcel above the mean high water mark varied from eleven feet at its narrowest point to eighteen and one-half feet at its widest point.

Both pieces of the defendant's property are located within a "Residence A" zone pursuant to the plaintiff's zoning ordinance. In a "Residence A" zone the principal uses permitted are single family dwellings and "2. Private parks, beaches and docks."

On or about May 11, 1976, the defendant erected in front of the most southerly dwelling on his premises a large sign which stated, "This beach is now open to the public." The defendant later placed on that dwelling two signs which read, "Beach open to the public," and two additional signs reading, "Park," and "Swim at your own risk." Those signs were visible to members of the general public traveling on Falcon Road.

Initially, the defendant's residential tenants used his beach. Next, the defendant admitted that he intended to invite members of the general public to use his beach without fee. He offered two reasons for his conduct. First, he stated that he was extremely grateful to the town of Guilford, and its residents, because he had become prosperous by virtue of investments within the town. Next, the only public beach in Guilford, according to the defendant, is Jacob's Beach. Jacob's Beach is very small and is covered with oil.

The defendant received a letter dated July 9, 1976, from F. J. Kingsbury, the plaintiff's zoning enforcement officer, claiming that the signs posted by the defendant and the alleged opening of his beach to the general public constituted a violation of the zoning ordinance. When the defendant did not comply with the plaintiff's cease-and-desist order, the present action was commenced. In it the plaintiff sought a temporary injunction, in addition to other relief. During the hearing, the defendant agreed to remove the signs, and consented to a temporary injunction against erecting, or causing to be erected, on his property any signs which did not conform to the zoning ordinance. Thus, the sole remaining issue is that portion of the temporary injunction in which the plaintiff seeks to prohibit the defendant from causing or permitting his beach to be open to, or used by, the public.

At the outset, the plaintiff concedes that it lacks zoning jurisdiction over that portion of the defendant's beach property which lies between the mean high water mark and the mean low water mark. State v. Knowles-Lombard Co., 122 Conn. 263, 265, 188 A. 275. Thus, the present controversy narrows down to the defendant's alleged "public use" of that strip of his beach above the mean high water mark containing the limited dimensions described above.

The application for a temporary injunction relative to the beach lacks merit based on the reasons appearing hereinbelow.

Several general observations on the terms and conditions of injunctive relief are appropriate. The granting or denial of an injunction is within the sound discretion of the court under recognized principles of equity. Nicoli v. Frouge Corporation, 171 Conn. 245, 247, 368 A.2d 74; Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128; Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238; Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222; Lebanon v. Woods, 153 Conn. 182, 195, 215 A.2d 112. This rule applies with special force when the application is one for a temporary injunction in advance of a plenary trial on the merits. Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633; Beck v. Board of Trustees, 32 Conn.Sup. 153, 156, 344 A.2d 273; Hopkins v. Hamden Board of Education, 29 Conn.Sup. 397, 417, 289 A.2d 914.

Relative to its claims of law herein, the plaintiff has urged that since a zoning violation is asserted it does not have to establish irreparable injuries or lack of other legal remedies as a condition to obtaining a temporary injunction. The plaintiff relies on General Statutes § 8-12; Guilford v. Landon, 146 Conn. 178, 179-80, 148 A.2d 551; and 42 Am.Jur.2d, Injunctions, § 38, p. 776. No Connecticut case examined by the court specifically supports that argument. Even if it is assumed, although not conceded, that this rule may apply in Connecticut, the plaintiff nevertheless encounters a number of formidable obstacles to injunctive relief at this stage of the proceeding.

Initially, it is settled that a temporary injunction is an extraordinary remedy. Mele v. High Standard Mfg. Co., 13 Conn.Sup. 47, 50. It should not be granted where, among other things, the plaintiff's "legal rights are not clear"; Beck v. Board of Trustees, supra, 32 Conn.Sup. 156, 344 A.2d 273; or are "doubtful"; Pocket Books, Inc. v. Walsh, 204 F.Supp. 297, 299 (D.Conn.).

As noted previously, the plaintiff's basic claim is that the defendant's conduct in inviting certain persons, without apparent limitation, to use his beach is in violation of the zoning ordinance. The schedule appended to the ordinance merely describes one of the permitted uses as "private parks, beaches and docks." The ordinance, however, makes no attempt whatsoever to define "private," or to state with precision the line of demarcation between "private" and "public."

Thus, within the four corners of the ordinance no member or property owner of the association can ascertain, with any reasonable degree of accuracy, the legal extent to which he may invite to use the beach persons other...

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9 cases
  • Leabo v. Leninski, 2433
    • United States
    • Connecticut Court of Appeals
    • November 27, 1984
    ...his purchase of the property have been the subject of prior litigation. See Leabo v. Leninski, supra; Zoning Commission v. Leninski, 34 Conn.Sup. 66, 376 A.2d 771 (1976). He began to convert a three car garage on the ground floor of one of the cottages into an apartment and was ordered to s......
  • Leabo v. Leninski
    • United States
    • Connecticut Supreme Court
    • January 20, 1981
    ...a trial on the merits. It did, however, grant a temporary injunction as to the posted signs. See Zoning Commission of Sachem's Head Assn. v. Leninski, 34 Conn.Sup. 66, 376 A.2d 771 (1976). The defendant thereafter purchased Walden Hill Road and began to widen it in order to provide accommod......
  • Scaduto v. State
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 12, 2023
    ...by the zoning authorities for a temporary injunction closing the beach to the public, Zoning Comm'n of Sachem's Head Ass'n v. Leninski, 34 Conn.Supp. 66, 376 A.2d 771, 773 (Conn. C.P. 1976), he bought the private road separating his property from the plaintiffs' subdivision and took steps t......
  • Morytko v. Westfort, No. CV04 400600S (CT 5/31/2005)
    • United States
    • Connecticut Supreme Court
    • May 31, 2005
    ...where, among other things, the plaintiff's legal rights are not clear." (Citation omitted.) Zoning Commission of Sachem's Head Assn. v. Leninski, 34 Conn.Sup. 66, 70, 376 A.2d 771 (1976). However, "a hearing on a preliminary injunction is not a forum for a full investigation into the merits......
  • Request a trial to view additional results

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