Opinion
No. TTD CV 05 4003914 S
July 21, 2008
MEMORANDUM OF DECISION
ISSUE
The question before the court is whether to grant the plaintiffs' action requesting a permanent injunction against the defendant municipality, the town of Hebron, which would prevent the defendants from closing and barricading Wellswood Road at the Hebron-Colombia town line.
The plaintiffs' action requesting a permanent injunction is denied, as the plaintiffs have failed to show that: (1) irreparable harm would result if the injunction was denied; (2) that no adequate remedy at law exists; and (3) that General Statutes § 13a-55 provides them with a right to public road access.
FACTS
On November 11, 2005, the plaintiffs, Wellswood Columbia, LLC (Wellswood) and Ronald Jacques, commenced the current action, seeking to enjoin the defendants, the town of Hebron, the board of selectmen of the town of Hebron and Hebron town manager Paul Mazzaccaro, from closing or barricading Wellswood Road in the town of Hebron or otherwise restricting access to closing or barricading Wellswood Road in the town of Hebron or otherwise restricting access to Wellswood from the town of Columbia and Zola Road, a purported road located in the town of Columbia. From January 28 through 30, 2008, trial commenced and evidence was presented by both parties. The following facts were adduced from that trial: In early 2003, Jacques, the managing member of Wellswood, investigated a parcel of approximately 188 acres located in the town of Columbia. As a part of this investigation, the plaintiffs soon discovered that a portion of the parcel abutted the town of Hebron, as well as Zola Road, an unimproved road located in the town of Columbia that runs up to the Hebron town line, where it meets with Wellswood Road. Wellswood Road is a fairly narrow and windy road which commences at the intersection of Route 66, spanning over 2350 feet long and terminating at the Hebron-Columbia town line as a dead-end. The road's terminus is of a relatively high gradient and is abutted by the unimproved Zola Road. Currently lining Wellswood Road are several single-family homes, a small development and an apartment complex. In researching the subject property, Jacques further discovered that Wellswood Road and Zola Road provided the only access to the property. It was the plaintiffs' intention to develop on the property Wellswood village, a six-phase residential subdivision that would serve as a retirement community in the town of Columbia.
Because the only access to the property at the time was through Wellswood Road in the town of Hebron, the plaintiffs sought to involve the town of Hebron from the outset. On April 21, 2004, a meeting was held between the plaintiffs and the following town employees: Michael O'Leary, Hebron town planner; Tom Fenton, Hebron town engineer, John Soderberg, Hebron inlands wetlands and watercourses officer; Andrew Tierney, Hebron public works director; Carl Fonteneau, Columbia town planner; and the plaintiff, who was accompanied by his engineer and counsel, Attorney Branse. It was during this meeting that Hebron's town officials raised several concerns over the proposed development, including the runoff of stormwater away from Wellswood Road into the town of Hebron, access to an adequate water supply, the feasibility of septic services, and which type of access to the property would be appropriate, whether it be by private or public roads. According to the testimony of O'Leary, Hebron officials also voiced their concern over the fact that this development would, at least initially, be accessed solely through Wellswood Road and that such proposal was "bad planning" because it did not meet the standards of the Hebron subdivision regulations.
Following this meeting, the plaintiffs' engineer, James Dutton, met with Fenton and discussed drainage and grading designs for the proposed development. Further discussions between the plaintiffs and Columbia continued, where the parties discussed connecting to a public water system and eventually developing Columbia town roads that could access the proposed development. In August 2004, the plaintiffs purchased the subject property and, in October 2004, began the subdivision and land use approval process with the town of Columbia.
On December 9, 2004, Mazzacaro sent a letter to the Columbia planning and zoning commission expressing a number of concerns regarding the development of the proposed subdivision, including the need for Columbia to look at constructing alternative access roads that would connect the plaintiffs' development to Columbia. On December 14, 2004, separate meetings were held between the plaintiffs and the towns of Hebron and Columbia, and it was learned that Mazzacaro's letter was based on an outdated proposal that did not include the new access routes which ran from Columbia to the development. Nevertheless, no actual connections were made from any road or highway located in Columbia. In May 2005, the plaintiffs were granted approval from the Columbia inland wetlands and watercourses commission for the development of phase one, which consisted of fifteen units. Plaintiffs had also begun the required state review of septic systems and filed applications with the Columbia planning and zoning commission. These zoning applications were later withdrawn, as the statutory clock was running and approval of the septic systems was required before the zoning applications could be decided upon. After receiving approval of the septic systems, the zoning applications were resubmitted to the Columbia planning and zoning commission.
On September 13, 2005, at a meeting of the Columbia planning and zoning commission, Mazzacaro and other Hebron officials voiced their opposition to the proposed development, which included concerns regarding the location of the subdivision, possible problems with emergency responses to the development, public water concerns, the issue of maintaining Wellswood Road, the impact on Wellswood Road traffic, and sanitary and stormwater concerns. Following this meeting, the Hebron planning and zoning commission held a special meeting on October 6, 2005 and recommended the closing and barricading of Wellswood Road at the town line. This recommendation was adopted by the Board of Selectmen that night. The plaintiffs then filed this action on November 11, 2005, seeking a temporary and permanent injunction to prevent the defendants from closing and/or barricading Wellswood Road at the town line. On January 30, 2006, Hebron officially closed Wellswood Road by posting a "road closed" sign at its terminus. The defendants moved to dismiss the action on March 15, 2006 for lack of subject matter jurisdiction and the plaintiffs then filed an objection to the motion to dismiss. Before the motion to dismiss was ruled upon, the plaintiffs had filed a verified motion for temporary injunction on November 8, 2006 to prohibit the closure and barricading of Wellswood Road. On November 21, 2006, the court (Peck, J.) denied the defendants' motion to dismiss. Despite the efforts and concerns of the defendants, the plaintiffs received approval on the Wellswood village subdivision application from the town of Columbia in April 2006. On January 9, 2007, the parties entered into a stipulation with regards to the motion for temporary injunction, in which the defendants agreed to take no further steps to barricade the road or otherwise obstruct the plaintiffs' use of Wellswood Road pending the outcome of this action. On January 28, 2008 trial commenced and concluded on January 30, 2008. Both parties filed post-trial briefs on May 5, 2008 and reply briefs on June 2, 2008.
DISCUSSION CT Page 11890
It is well recognized in Connecticut that "[a] party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm absent an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tips in its favor." (Internal quotations marks omitted.) United States Trust Company, N.A. v. Cavalieri, Superior Court, judicial district of Hartford, Docket No. CV 07 5013653 (April 1, 2008, Bentivegna, J.), quoting Waterbury Teacher's Association v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). "The request for injunctive relief is addressed to the sound discretion of the trial court . . . In exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction. The issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier." (Citations omitted; internal quotation marks omitted.) Tomasso Brothers, Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 648, 646 A.2d 133 (1994).In their post-trial brief, the plaintiffs argue that a permanent injunction is warranted in the present case, as the town of Hebron's actions have essentially landlocked their property and prohibited them from proceeding further on their approved subdivision. They maintain that the closing and barricading of Wellswood Road at the town line so dramatically decreases the economic value of their property that it causes them irreparable harm and no other adequate remedy at law exists. The plaintiffs also point to General Statutes § 13a-55 to argue that they are entitled to a right of access, as it is their position that this statute indicates an intent of the legislature to prevent property owners from being denied access to their property.
General Statutes § 13a-55 provides in relevant part: "Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway . . ."
In the defendants' post-trial brief and reply brief, the defendants argue that the current request for injunction should be denied, as the town of Hebron has no legal obligation to keep the road open. The defendants further argue that in closing Wellswood Road at the town line, they were simply exercising their police power to maintain the health, safety and welfare of their citizens. They also maintain that § 13a-55 is not applicable to the facts of this case and that the plaintiffs are not entitled to injunctive relief, as they have not sufficiently shown that they will suffer irreparable harm absent an injunction, nor have they shown that no adequate remedy at law exists.
It is well established in Connecticut that municipalities are given a vast array of powers, which include the power to regulate streets and highways. General Statutes § 7-148(c)(6)(C)(i) provides that municipalities have the power to "[l]ay out, construct, reconstruct, alter, maintain, repair, [and] control . . . streets, alleys, [and] highways . . ." Further, General Statutes § 7-148(c)(7)(B)(i) gives municipalities the police power to "[r]egulate and prohibit [ . . . ] the operation of vehicles on streets and highways . . ." Pursuant to General Statutes § 7-148(c)(7)(H)(xii), for public health and safety reasons, municipalities also may "[r]egulate the use of streets, sidewalks, highways, public places and grounds for public and private purposes . . ."
In determining when a plaintiff may be entitled to injunctive relief against a municipality, it is enlightening to look at previous cases decided by our courts which dealt with similar facts and questions of law. In their post-trial brief, the plaintiffs rely on the case of Horwitz v. Waterford, 151 Conn. 320, 197 A.2d 636 (1964), in support of their position that a court may grant an injunction when a town ordinance prevents a landowner from building on their property. In Horwitz, the plaintiff owned an unimproved lot in Waterford which abutted Long Island Sound to the south and a private right-of-way to the north, with private residences abutting the subject lot to the easterly and westerly sides. After purchasing the property, the town of Waterford enacted an ordinance prohibiting the erection of any building and the issuance of a building permit on any lot abutting an unaccepted highway or street. When the plaintiffs, who wished to construct a dwelling on their land, applied to the Waterford zoning and planning commission for a variance, their application was denied, based on the ordinance. When the plaintiffs later sought a building permit for the purposes of constructing a dwelling on their property, they were denied by the building inspector for the same reason. The plaintiffs then brought a declaratory action against the defendants, and the trial court, finding that the ordinance in question was unconstitutional, issued an injunction restraining the defendants from enforcing it.
On appeal, the Supreme Court recognized a municipality's power to legislate for the safety, health and welfare of its people, but stated that such an exercise of power must bear "a rational relationship to the subjects which fall fairly within the police power and unless the means used are not within constitutional inhibitions." Id., 323. The court went on to define "inhibitions" as any means which are "destructive, confiscatory or so unreasonable as to be arbitrary." Id. In determining whether a municipality's exercise of its police power exceeded its constitutional limitations, "[r]elevant factors to be considered in any case are the alternatives available to the landowner, the degree of diminution in the value of his land, and the extent of public benefit to be derived from enforcing the prohibition." Id., 323-24. In Horwitz, the court found that the only reason for the defendant's denial of a variance and building permit was their concern that there were no means of access to the property for the purposes of fire protection. Nevertheless, the court found that several other houses in the area were similarly without access and that safety would not be appreciably affected by the addition of another house. In finding that the defendant's sole reasoning for denying the plaintiffs permission to build on their property was unavailing, the Court found that the subject ordinance was unconstitutional, as its effect would be to "prevent [the property's] effective use for any purpose allowed by law." Id. The court also concluded that "[t]he application of the ordinance to the plaintiffs' land would seem to be so harsh in comparison with the trivial public benefit, if any, which might result from its enforcement, that the ordinance is confiscatory when applied to the plaintiffs' land." Id.
The plaintiffs' reliance on Horwitz is misplaced. Unlike in Horwitz, the defendants here have provided several reasons for closing Wellswood Road, including: the condition of Wellswood Road and the effect increased traffic would have on the road; the slope and curvature of the road make it inappropriate for increased traffic flow; Columbia's lack of direct emergency access to the subdivision; the remote location of the development in relation to Columbia's town center; the plaintiffs' proposed use of the Hebron public water supply; the fact that extending Wellswood Road would violate Hebron's subdivision regulations regarding the length of cul-de-sac roads and the amount of traffic imposed on such roads; and the amount of money Hebron would have to expend to make the road safer for increased traffic. In balancing the injury complained of with that which will result from interference by injunction, the court finds that, while varying in degree, the defendants have demonstrated that they have legitimate concerns that the plaintiffs' proposed development would have serious negative impacts on the health, safety and welfare of its citizens and the town itself. Their closing of Wellswood Road was not to achieve some "trivial public benefit," as was the case in Horwitz, but rather was done to ensure that their town and its citizens were not adversely affected by a development not within their jurisdiction, but whose impact and detriment would almost exclusively be felt by Hebron.
While the initial proposal to the town of Columbia only consisted of fifteen units to be constructed, this was just the first of six phases that the plaintiffs planned to construct on the property, and Hebron had no assurances at the time that other access roads connecting the subdivision to Columbia town roads would be constructed. Because Hebron had no guarantee from either the plaintiffs or Columbia that these roads would eventually be constructed through Columbia, Hebron had to analyze Wellswood Road as being the potential sole means of access to a subdivision which would eventually include well over 100 units. Surveying Wellswood Road in this manner, it was the expert opinion of Hebron officials that such use was against their concept of town planning and was contrary to the health, safety and welfare of its community. It was for this reason that Hebron closed Wellswood Road, and it was certainly a proper exercise of their police power to do so. It is also important to note that our Supreme Court has upheld a town's right to barricade a road at its town line in order to prevent excessive traffic. See Pizzuto v. Newington, 174 Conn. 282, 386 A.2d 238 (1978). For these reasons, the court finds that Hebron properly exercised its police power in closing Wellswood Road.
Other cases have also distinguished themselves from the limited holding in Horwitz. In Nicoli v. Planning Zoning Commission, 171 Conn. 89, 96, 368 A.2d 24 (1976), the court was presented with a similar set of circumstances as is now before the court. In that case, the plaintiff had purchased a thirty-acre parcel of land in Easton with the intention of subdividing the property into nine residential lots. The property abutted the Easton-Trumbull line on the eastern side, and no road within Easton gave him access to the subject parcel. Consequently, the plaintiff sought to develop the subdivision adjacent to a proposed extension of Harvester Road, a road located in the town of Trumbull. When the plaintiff applied to the defendant for approval of the subdivision, the defendant commission voted to approve the plan on the condition that the proposed public road within the subdivision would connect to a public street or highway in the town of Easton. The plaintiff appealed the decision, claiming such action was illegal, arbitrary and an abuse of discretion. The trial court found that the conditional approval by the defendant was invalid and eliminated the condition. On the defendant's appeal, the Supreme Court reversed the ruling of the trial court, finding that such a condition was not illegal, arbitrary or an abuse of discretion; rather, the defendant had legitimate concerns that a lack of access from Easton would pose a serious threat to the health, safety and welfare of Easton residents.
Further, and of specific relevance to the present case, the court reasoned that, without such a road from Easton, "[t]he town of Easton would thus be forced to depend upon the highways of Trumbull to provide vital public services to the future residents of the proposed subdivision. Fire, police and other emergency vehicles . . . would be forced to service the area by roundabout routes, leading from Easton through Trumbull and back again." Nicoli v. Planning Zoning Commission, supra, 171 Conn. 95. Moreover, the court went on state that "[t]he town of Easton cannot be required to build roads, the sole purpose of which is to provide access to prospective subdivisions in remote and otherwise inaccessible areas, simply because a subdivider has chosen to build there. The result here is not confiscatory. The condition has not rendered the acreage involved valueless, but has affected the use of that property at this time for a subdivision of the type and extent proposed." Id., 96-97.
In the present case, the defendants, like those in Nicoli, have provided sufficient evidence that they did not close Wellswood Road for some "trivial public benefit," but rather did so to promote the town's welfare by maintaining "orderly and economical community development." Id., 96. Based on the evidence presented at trial and an inspection of Wellswood Road in its current condition, the court finds that the defendants have sufficiently shown that the road in question is not one which would be an ideal sole access road. The town of Hebron cannot be expected to maintain and expand roads, the sole purpose of which is to provide access to prospective subdivisions in remote and potentially hazardous locations, simply because the plaintiffs have chosen to build there. Further, the fact that the defendants have closed Wellswood Road for the proposed subdivision does not render the property valueless. As the defendants' expert appraiser, Dean Amadon, testified, there are alternative uses of the property which would not require public road access. Those alternatives included a property with one dwelling constructed on it, and property that could be used for logging, forestry and nursery crop purposes. (Trial tr., January 29, 2008, pp. 85-86.)
Another case which limited the holding of Horwitz was Kovacs v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 90 0235455 (April 27, 1993, Dorsey, J.). There, the plaintiff filed an application for a temporary injunction to restrain the defendant city of Meriden from blocking or otherwise denying the plaintiffs access to their property located wholly in Wallingford but abutting the Meriden-Wallingford town line. Located on the town line was a Meriden highway known as Cedarwood Drive, which the plaintiff sought to maintain access through pursuant to General Statutes § 13a-55. The plaintiff's action was prompted by the Meriden city council declaring Cedarwood Drive a dead end road at the town line. It had been the plaintiff's plan to subdivide his unimproved parcel of land and create access roads through both Wallingford and Meriden, with access to Meriden via Cedarwood Drive.
Nevertheless, the Wallingford planning and zoning commission denied the plaintiff's subdivision application when it learned that Cedarwood Drive was not accessible to the plaintiff's abutting property, as the regulations of Wallingford specified that more than one route of access would be required for the proposed subdivision. The plaintiff cited § 13a-55 in support of his position that he had a private right-of-way to Cedarwood Drive and that Meriden's decision to dead end the road would cause him irreparable harm. The defendants contended that an injunction was inappropriate, as the plaintiff could not prove irreparable harm and that there was a lack of an adequate remedy at law. They further argued that their resolution to dead end Cedarwood Drive was legislation enacted pursuant to the exercise of the municipality's police power.
In making its ruling, the court in Kovacs held that "[t]he plaintiffs bear a heavy burden when they ask a court to overturn the legislative action of a municipal council acting within their designated powers. The challenged resolution is an exercise of the police power conferred upon the town by statute for the purpose of protecting the public safety or the welfare of its inhabitants. Where the power exists, it must be exercised reasonably. The limit of the exercise of police power is necessarily flexible because it has to be considered in the light of the times and prevailing conditions . . . Whether the times and conditions require legislative regulation as well as the degree of that regulation is exclusively a matter for the judgment of the legislative body . . . Courts can interfere only in those extreme cases where the action taken is unreasonable, discriminatory or arbitrary . . . Every intendment is to be made in favor of the validity of [an ordinance], and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt . . . [T]he court presumes validity and sustains the legislation unless it clearly violates constitutional principles . . ." (Citations omitted; internal quotation marks omitted.) Id.
While the court acknowledged that the plaintiffs had offered evidence that there was no feasible or prudent alternative to the plaintiffs' proposed use of Cedarwood Drive to access their property, they noted that "[p]laintiffs' property is not landlocked in Wallingford. It remains to be seen whether other proposals with alternative means of access would be acceptable to the Wallingford authorities. If the diminution of access rights accomplished by dead ending Cedarwood Drive in practical effect so drastically impaired the economic utilization of their land that the denial of access to Cedarwood Drive is, as to them a taking they may be entitled to damages, however some impairment of access rights and some diminution in the total value of land do not without more justify a conclusion that there has been an unconstitutional taking." (Citations omitted; emphasis added.). Id.
As in Kovacs, the plaintiffs here have failed to offer any substantial evidence that alternative means of access to Wellswood village through Columbia would not be possible. In fact, to the contrary, the plaintiffs submitted subsequent proposals to the towns of Hebron and Columbia that included access roads which would eventually connect to Columbia's road system, proposals which, according to Ronald Jacques' testimony, received "positive response from Columbia." (Trial tr., January 28, 2008, pp. 76-77.) Even the plaintiff's engineer, Robert Johnston, could not rule out that future access through Columbia was not possible, just that access was not currently available. (Trial tr., January 29, 2008, pp. 43-44.) Consequently, it remains to be seen whether the subject property is forever landlocked in the town of Columbia, as the plaintiffs failed to prove that alternative means of access were not available. While such other alternatives may not be the most economical or timely means of accessing the proposed subdivision, mere inconvenience or frugality is not enough in proving irreparable harm. As Kovacs makes clear, "[a]lthough such alternatives might impose greater economic burdens on plaintiffs, this fact alone is not conclusive." Kovacs v. Meriden, supra, Superior Court, Docket No. CV 90 0235455.
In the present case, it remains to be seen whether proposals with alternative means of access would be acceptable to Columbia authorities, but the fact remains that access through Columbia would be possible in the future and the plaintiffs themselves embrace that model of planning. Because the plaintiffs have failed to establish that Hebron's actions would actually landlock their proposed development, they have not satisfied their burden of proving that they would suffer irreparable harm if an injunction is not granted. The fact that the plaintiffs will have to access their property through more time-consuming and expensive means then they would if Hebron was forced to keep Wellswood Road open to their development does not mean that irreparable harm will result.
Furthermore, the plaintiffs have not demonstrated that they are without an adequate remedy at law. Based on their allegations, the plaintiffs could have sought damages based on a taking theory of recovery, yet they chose not to seek such a remedy in their prayer for relief or otherwise during the course of this litigation. While both parties provided expert appraisal testimony at trial, each of which provided significantly different opinions regarding the diminution of value resulting from the closure of Wellswood Road, such evidence was presented with respect to the issue of irreparable harm, not money damages. This court disagrees with the plaintiffs' assertion that the availability of money damages is not relevant to determining whether an adequate remedy at law exists. "Irreparable injury is one that cannot be redressed through a monetary award. Where money damages are adequate compensation . . . injunction should not issue." (Citations omitted; internal quotation marks omitted.) Inkredible Stuff Marketing, Inc. v. Donaldson, Superior Court, judicial district of Litchfield, Docket No. CV 04 0092546 (April 20, 2004, Pickcard, J.). Based on the expert appraisal testimony of the parties, the legal remedy of money damages would be available to the plaintiffs here, as each appraiser testified to specific estimates of economic loss that would result from the closure of Wellswood Road. Because both parties provided expert testimony that offered specific amounts of compensable injury, the court finds that the plaintiffs have not sufficiently demonstrated that they are without an adequate remedy at law, and as such, an injunction should not issue in the present action.
The court acknowledges that in certain instances, a town's actions entitle property owners to legal and equitable remedies. "A landowner who, as a result of governmental action, suffers a total and permanent loss of his right of access to the public way adjacent to his land and to the system of public roads is entitled to recover damages." Luf v. Southbury, supra, 188 Conn. 342. Here, the plaintiffs have argued that they have suffered irreparable harm because Hebron's actions have injured them in such a way that money damages cannot compensate them. However, the plaintiffs have contradicted this position through the evidence they provided at trial, namely the expert testimony of their appraiser. While this fact may preclude them from seeking injunctive relief, it does not prevent them from seeking money damages. Yet in order to recover such money damages, Luf makes clear that the plaintiffs must show a " total and permanent loss" of the right of access to public roads, and presently the plaintiffs have failed to prove such a loss based on the evidence presented at trial. The evidence demonstrates that Hebron was willing to allow access through Wellswood Road under certain conditions. If the plaintiffs had presented a proposal to Hebron in which Columbia had an actual agreement with the plaintiffs to grant access through Zola Road into the town of Columbia, the evidence suggests Hebron likely would not have objected to Wellswood Road serving as an alternative access road. Notwithstanding this fact, the plaintiffs made no such agreement with Columbia and had not convinced the defendants that any road would be constructed through Columbia at a certain point in the future.
Because of this, the defendants recognized that Wellswood village would proceed with Wellswood Road being the sole means of access to the subdivision, and it was their concern that the road was not suitable for that type of use, nor would that type of use comply with the health, safety and general welfare of its community. Because the plaintiffs have failed to prove that they will suffer irreparable harm and that no adequate remedy at law is available to them, they have not shown this court that they are entitled to injunctive relief. Furthermore, because the plaintiffs have not sought money damages and have failed to show that they have suffered a total and permanent loss of a right of access as a result of the defendants' actions, the court finds that they are not entitled to compensatory damages under a taking theory at this time.
While the plaintiffs argue in their post-trial brief that, should the court find injunctive relief is not the proper remedy here, they are entitled to money damages and a temporary injunction until such damages are paid, the plaintiffs have not provided sufficient evidence on this issue. In fact, this alternative theory of recovery was never brought up in any of the plaintiffs' pleadings, nor in their prayer for relief. Because they have failed to properly bring this issue before the court, the issue of money damages will not be addressed; the only issue presently before the court is whether the plaintiffs are entitled to injunctive relief.
As for their position that General Statutes § 13a-55 should entitle them to a right-of-way, the court finds that this statute is not applicable to the facts of this case. "The effect of 13a-55 is to alter the common law consequences of the discontinuance of a public highway. While, before the statute, discontinuance extinguished both the public easement of travel and the private easement of access . . . after the statute, the public easement ceases but the private easement remains. The abutting owners now continue to have an easement of access over the discontinued highway. Their easement of necessity includes the right to travel over and to improve the existing roadbed . . ." (Citations omitted.) Luf v. Southbury, 188 Conn. 336, 344, 449 A.2d 1001 (1982).
The court in Kovacs, supra, Superior Court, Docket No. CV 90 0235455, went on to state that "[a]bandonment or discontinuance is a question of fact . . . On the facts of this case the court concludes there has been no abandonment or discontinuance of Cedarwood Drive. Two-way traffic is still permitted on Cedarwood Drive despite the action of the Court of Common Council. Traffic using Cedarwood both before and after the action taken by the council has uninterrupted access to all of the other streets in the community. That is not to say that the council's action did not affect the plaintiffs." (Citations omitted.) Kovacs v. Meriden, supra, 4101. The court noted that, regardless of whether or not there had been a § 13a-55 discontinuance or abandonment, the plaintiffs had an unabated right to access their property through Cedarwood Drive. Nevertheless, the court found that because the plaintiffs sought injunctive relief, they failed to satisfy their burden of proof under the injunctive relief standard.
Here, as in Kovacs, the plaintiffs have not proven to the court that Wellswood Road was either "abandoned" or "discontinued" by the town of Hebron. Like the dead-ending of the road in Kovacs, Hebron's closing of Wellswood Road at the town line has had virtually no effect on the road's traffic or on property owners presently located alongside the road. Traffic using Wellswood Road both before and after the action taken by Hebron has uninterrupted access to all of the other streets in the community. While the court does acknowledge that Hebron's actions have certainly affected the plaintiffs, that does not warrant the conclusion that Hebron has "abandoned" or "discontinued" Wellswood Road.
This finding is further demonstrated by the plaintiffs' inability to show the court how Hebron's actions fit within the definition of those two terms. For many years, Wellswood Road has been a road that services residential units located alongside it and ceases at the town border, and Hebron's closing of the road at the Columbia line merely reinforces the road's long-recognized use. Based on the evidence presented at trial, it seems that if any road was "abandoned" or "discontinued," it was Zola Road by the town of Columbia. Therefore, the plaintiffs have failed to demonstrate that Hebron "discontinued" or "abandoned" Wellswood Road and thus they have not proven that § 13a-55 applies and that they are entitled to any private right-of-way.
Even if the court were to find that Hebron "abandoned" or "discontinued" Wellswood Road and that § 13a-55 is applicable to the case at bar, such a finding would not provide the plaintiffs the relief they seek. Our Supreme Court defined the scope of § 13a-55 in the case of Tighe v. Berlin, 259 Conn. 83, 788 A.2d 40 (2002), where the plaintiffs sought an injunction requiring the town of Berlin to remove a traffic gate that the town had erected to control vehicular access to an abandoned town road. In Tighe, the plaintiffs owned property within a subdivision that abutted a road that had been deemed abandoned by the town. Running though the subdivision was a roadway constructed by the developers which intersected with the abandoned road. In order to prevent use of the abandoned road by anyone other than the few property owners whose property in the subdivision abutted it, the town erected a gate, to which the abutting landowners were given keys. The plaintiffs applied for an injunction, arguing that the 1990 amendment to § 13a-55, which added that the private right-of way provided to abutting owners would be "for all purposes for which a public highway may be now or hereafter used" provided them a public right of travel over abandoned stretches of road.
The Supreme Court disagreed with the plaintiffs' position, and after looking to the legislative history of the 1990 amendment, reasoned that the amendment was enacted to provide property owners the ability to use the private right-of way along the abandoned stretch of road in order to carry utility services. The court went on to state that "[t]he amendment was not intended to reintroduce public travel along a road that a town had previously abandoned . . . The 1990 amendment, therefore, does not alter the fact that public access to a discontinued roadway ends when a town formally abandons the road, although the private right of access for abutting landowners continues." Tighe v. Berlin, supra, 259 Conn. 90. In acknowledging the powers conferred upon municipalities under § 7-148(c), the court found that the trial court had appropriately exercised its powers to control and regulate traffic and that the "court properly balanced the plaintiffs' continuing right of private access against the defendant's right and responsibility to ensure the safety and security of its residents." Id., 92.
The court recognizes that the facts of Tighe are distinguishable from those of the present case, and that in Tighe, the court actually recognized the abutting landowners' right of private access to the abandoned road. Nevertheless, this court finds that much of the reasoning applied in that decision warrants a different conclusion based on the facts of this case. While the court in Tighe recognized that those property owners abutting the abandoned road still had private rights of access to it, it specifically limited that right to private rights of access and did not recognize any public right by extending the right to all property owners within the subdivision. Hence, those property owners in the subdivision whose property did not abut the abandoned road had no private right of access and were required to use other access roads to exit and enter the subdivision.
This is where the facts of Tighe conflict with the facts of this case. Here, not only would abutting landowners in the retirement community require private rights of access to Wellswood Road, but all nonabutting landowners in the development would also require private rights of access as well. Unlike in Tighe, a private right of access could not be extended to a select few whose properties abut the abandoned or discontinued road. Because Wellswood Road is the only current means of access to the proposed development, Hebron would have to extend a right of access to the entire development, a population which could eventually reach into the hundreds based on the proposed size of Wellswood village. Certainly, this result would defeat the whole purpose of § 13a-55, as an abandoned or discontinued highway would essentially be required to stay open to the public by having to provide rights-of-way to all residents of Wellswood village. It would also infringe upon the powers conferred to Hebron under General Statutes §§ 7-148(c)(6)(C)(i), 7-148(c)(7)(B)(I), and 7-148(c)(7)(H)(xii). It is further noted that through the evidence presented at trial, there is no determinative point along this disputed area where the town line exists and where Wellswood Road ends and Zola Road begins. Consequently, there is no definitive evidence that the plaintiffs' property even abuts the town of Hebron or Wellswood. Consequently, to apply § 13a-55 to the present case would defeat its purpose of only providing private rights-of-way to abutting landowners; in effect, it would be allowing the public right of access to survive as well.
It is important to note that the court, Peck, J., denied the defendants' March 15, 2006 motion to dismiss and stated, "[v]iewing the facts alleged in the complaint in the light most favorable to the plaintiffs, the court finds that the plaintiffs have standing to maintain this action. Under § 13a-55, the plaintiffs have a private easement of access over Wellswood Road." Nevertheless, this finding was made under a different standard and is not binding on the court's analysis in the current decision. The law of the case doctrine is well established in Connecticut. "A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case . . ." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 249, 926 A.2d 656 (2007). Because the court does not make its findings here in a light most favorable to either party, it is the court's determination that based upon the evidence presented at trial and the burden of proof that is placed on the plaintiff, the plaintiffs are not entitled to the type of right-of-way they presently seek. Accordingly, § 13a-55 is not applicable to the factual scenario presently before the court, nor does it serve as an illustration regarding the kinds of rights all abutting property owners maintain when public use of roads are extinguished.
CONCLUSION
For the foregoing reasons, the court finds that the plaintiffs' application for a permanent injunction be denied, as they have failed to prove that they will suffer irreparable harm or that no adequate remedy at law exists. The defendants, in closing Wellswood Road, were properly exercising their police power to protect the health, safety and welfare of their town. Furthermore, the plaintiffs are not entitled to keep Wellswood Road open under § 13a-55 as the facts of this case do not warrant its application.