Opinion
No. CV01-0073670S
September 3, 2003
MEMORANDUM OF DECISION RE INJUNCTIVE RELIEF
Plaintiff, Pilot's Mall, Inc. is engaged in real estate development in the Oxford area and has brought an injunction action against a private entity alleging that said entity, Christian Associates, LLC, has violated and intends to further violate zoning strictures inherent in a newly formed zone, to plaintiff's economic detriment. The primary claim, generally stated for the purposes of this introduction, is that defendant's street sweeping company is and will further be in violation of the requirements of the "corporate business park" established recently in Oxford. Plaintiff is heavily invested in Oxford, with over 400 acres, while defendant's new location occupies a site of less than 4 (four) acres.
The court has had to abandon its original intention to marshal all the facts, for essentially two reasons. The law clerk specially assigned to the court for this matter left early on for a private practice opportunity. Further, the denial of the injunctive relief sought is not likely to result in an appeal. See, e.g. Ebstein Ebstein, P.C. v. Smith Thibault Corp., 20 Conn. App. 23 (1989). As a result, the opinion will be understood by the parties who constitute the only current relevant audience.
The new zone is styled a "corporate business park" and is governed by newly promulgated zoning regulation 9 A.
Plaintiff claims it will be irreparably harmed if defendant is allowed to complete the ongoing relocation of its business which will concededly result in the outside parking of at least 25 large street sweepers, "VAKTORS" (pieces of equipment designed to remove debris from storm sewers on municipal streets) and assorted trucks. Plaintiff alleges that this is a too "industrial" sort of endeavor, one which will surely reduce the profit potential and/or land value inherent in its plans for a development more devoted to corporate offices and permitted light manufacturing.
Defendant alleges that plaintiff has failed to exhaust administrative remedies and that the complaint should be dismissed, and, substantively, that there is compliance with zoning regulations, citing, inter alia, zoning approvals.
Plaintiff has relied somewhat primarily on the expert opinion of Robert Nocera which, in part, states that future prospective buyers or tenants, upon learning what the Town has allowed defendant in its first experience with the new zone, will fear repetitions and think it best to stay away.
I. DEFENDANT'S MOTION TO DISMISS FOR FAILURE OF PLAINTIFF TO EXHAUST ADMINISTRATIVE REMEDIES
Defendant suggests that dismissal of this injunction action is required because plaintiff did not appeal from the zoning board's grant of approval to defendant.
The court is disinclined to honor defendant's claim that the complaint should be dismissed for failure to exhaust administrative remedies. None of the proffered arguments, singularly or cumulatively, tend to create a sense that dismissal for this reason would be appropriate here.
The approval of defendant's application took place in response to the submission of the gentlemen who had a contract to sell the parcel to the defendant street sweeping company. Additionally, no pre-hearing notice (although not legally required) was published which might be fairly deemed to be an adequate apprisal for plaintiff as to the nature of what was intended. Further, the zoning hearing itself did not clearly reveal, through the titular applicant or the ultimate soon-to-be user (who also testified), that the primary "offending" feature, trucks and equipment parked outside, would be occurring.
It is fair to say that the proposed usage which garnered approval came closer to obscuring the offending feature which forms the heart of plaintiff's action than to revealing it. While stealth may not have been a motivating purpose in the approach of defendant entity and the gentleman who conditionally contracted to sell to it, it does appear that the offending feature flew through beneath the radar.
Additionally, our Supreme Court would not require "exhaustion" of a plaintiff seeking injunctive relief under allegations of zoning violations coupled with a claim of having suffered specific and material damage. See, Cummings v. Tripp, 204 Conn. 67, 75 (1987), and cases cited therein.
The court is not "forgiving" the failure to pursue administrative appeal (s) on a perception that such a course would be futile. It might be noted, however, parenthetically, that the conduct complained of had not fully ripened during the period when appeals would have required pursuit. See Armstrong v. Washington, 158 Conn. 158 (1969).
II. RE WHETHER PLAINTIFF IS ENTITLED TO INJUNCTIVE RELIEF
Plaintiff's claim is essentially that to allow defendant Christian Associates to park at least twenty-five large vehicles used for street sweeping and storm sewer vacuuming is, beyond being violative of the regulations governing this new zone, going to have a chilling economic effect upon plaintiff's intended development of what is, in effect, almost the entire remainder of the new zone.
Plaintiff is not presently able to demonstrate specific opportunities actually lost, through no fault of its own, for at the present time its plans are not fully formed and its wares (rental space and/or land to be sold) are not actively being marketed. Plaintiff did offer, however, the credible testimony of an expert, Robert Nocera, experienced in commercial appraisal and banking. It was Mr. Nocera's contention that interested prospects would view this alleged violation by defendant as a negative factor and would be apprehensive about what other illicit usages would be approved or tolerated. This would, he felt, diminish plaintiff's property values, creating a cloud which would force plaintiff into marketing approaches significantly less remunerative. It was additionally Mr. Nocera's conclusion that this negative impact did not depend upon potential business prospects actually being able to see the "illicit" trucks and equipment; prospects weighing a sizeable financial commitment will want to know "what's going on" and would react negatively to a "contractor's yard" and apprehensively to what might be the other shoe being allowed to drop. The court rejects none of these contentions. However, there are other factors which tend to suggest that the harm potential is not sufficiently imminent and irreparable to require injunctive relief at this time.
In Silitschanu v. Groesbeck, 12 Conn. App. 57 (1987), it was noted that "the issuance of an injunction is the exercise of an extraordinary power . . . and the justiciable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury." Id. At 64, quoting, inter alia, Karls v. Alexandra Realty Corporation, 179 Conn. 390, 401 (1980).
In this regard, it is noted that plaintiff's plans are not fully formulated and action upon them, such as they are, has yet to become readily perceptible. It appears, instead, that plaintiff's usage of its Oxford acreage will follow, if it can, the ongoing development it has begun in Southbury and Middlebury.
Of course, it is possible to visit ruination upon one's plans even where the plan was for implementation a decade out, but here there are too many variables to fit requirements of imminence, substance and irreparability.
The court is aware that imminence of harm and relative certainty of harm may or may not be closely interrelated. An injunction action should not fail on imminence grounds alone where the distant harm appears truly likely to materialize. To fail to recognize that would be to ignore that real estate development is a lengthy process in which tomorrow's steps may be heavily governed by far-off reality. Here, however, plaintiff's claims carry a certain multi-faceted quality of softness, presenting a less than cohesive future jeopardy. As a result, the imminence hurdle is not erased, as the law might tolerate, by sufficiently apparent jeopardy on the horizon.
By way of illustration, no roads have been laid out upon which plaintiff's future prospects would travel; no building. site or road elevations have been chosen. In these twin vacuums, it is hard to cleanly discern the scope of the negative impact of defendant's vehicles parking, storage and movement.
There are other potential hurdles to establishing imminence of harm which obstacles, of course, also go to its level of certainty. Plaintiff will, in the future, be exquisitely sensitive to suggestions and applications for development by others on the few remaining small parcels plaintiff does not already own in this zone. Plaintiff's voice should be well heard, too, because it owns the great bulk of this district which the town, of course, created for its own economic health and it has demonstrated an ability and willingness to litigate in its own self-interest. Also, as owner of almost all of the remaining land in the zone, plaintiff can protect itself from itself, and not act in a fashion on its parcel (s) in ways likely to devalue its or anyone's development as to the remainder.
III. RE WHETHER A ZONING VIOLATION WAS ESTABLISHED
This injunction action fails at this time, it should be noted, not because of a failure to establish a zoning violation upon defendant's property regarding the parking/storage of street care equipment. This court makes no finding in this regard for to do so is unnecessary at present to the determination of entitlement to an injunction. It might be noted, however, that the explanations of the zoning enforcement officer and the planning and zoning chairman, in suggesting various compliances with regulations regarding the vehicular equipment storage/parking were rather wholly unpersuasive, ranging inside a spectrum from vague to disingenuous.
These proffered rationale include that this vehicle parking is a) within the contemplations envisioned in the setting out of the lot's parking spaces and b) inherent in the (permitted) light manufacturing to occur within the building, and c) not a prohibited "contractor's yard."
IV
It should be apparent that this request for equitable injunctive relief has not foundered due to a finding that there are obvious adequate remedies at law. In this broad vein, however, one might appreciate that there are potential events which might tend to ameliorate the alleged violation (s). The Commission has, from the outset, promised a review to assess landscaping barriers. Under oath, the Chairman of the Commission has promised that he would conduct one, assuming plaintiff would allow him onto its land to perform such a view. And, as one would expect, he also stated a future complaint would be investigated.
For the various reasons set out above, the court must deny injunctive relief.
Nadeau, J.