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Day v. Perkins Properties, LLC

Court of Appeals of Connecticut

May 14, 2019

KIERAN DAY ET AL.
v.
PERKINS PROPERTIES, LLC, ET AL.

          Argued February 13, 2019

         Procedural History

         Action to recover damages for, inter alia, private nuisance, and for other relief, brought to the Superior Court in the judicial district of New London, where the matter was tried to the court, Hon. Joseph Q. Koletsky, judge trial referee; judgment in part for the plaintiffs; thereafter, the court granted the plaintiffs' motion for clarification and issued a certain order, and the defendants appealed to this court. Reversed; judgment directed.

          Matthew G. Berger, for the appellants (defendants).

          Michael S. Bonnano, for the appellees (plaintiffs).

          DiPentima, C. J., and Lavine and Flynn, Js.

          OPINION

          FLYNN, J.

         The defendants, Perkins Properties, LLC, and Mark J. Perkins, Jr., appeal from the judgment of the trial court rendered in favor of the plaintiffs, Kieran Day and Jennifer Day. The defendants claim that the court improperly determined that a nuisance per se existed solely on the basis of violations of local zoning regulations.[1] We agree that a violation of a local zoning ordinance in one town cannot be said to constitute a nuisance everywhere in the state of Connecticut as the nuisance per se doctrine requires and, accordingly, we reverse the judgment of the trial court.

         The following undisputed facts and procedural history are relevant. The plaintiffs own real property located at 572 Lantern Hill Road in Ledyard. Perkins is the sole member of Perkins Properties, LLC, the owner of real property abutting the plaintiffs' property located at 576 Lantern Hill Road in Ledyard. The defendants' property is a contiguous parcel that also encompasses 586Z Lantern Hill Road in North Stonington. The defendants' Ledyard and North Stonington properties are separated by Whitford Brook, and both are located in residential R-80 zones that prohibit commercial use of real property.

         In a separate action brought by the town of Ledyard and Joseph Larkin in his capacity as Ledyard's zoning enforcement officer against Perkins Properties, LLC, those parties entered into a stipulation on October 27, 2016. The written stipulation provided that Perkins Properties, LLC, was enjoined from operating a landscaping business, lawn care business, snow removal business, or other similar commercial operations at 576 Lantern Hill Road in Ledyard. It further provided that commercial activity and uses accessory to commercial activity were not permitted in residential zones pursuant to § 3.4 of the Ledyard Zoning Regulations, and that no building, structure, or any portion of the property shall be used for commercial activity or any purpose subordinate or incidental to commercial activity, including, but not limited to: vehicular or pedestrian access to commercial activity; employee parking for commercial activity; storage, maintenance, or repair of vehicles, equipment or machinery used in whole or in part in conducting commercial activity, except as permitted by paragraph 2 of the stipulation; assembly of employees of commercial activities other than farming or uses accessory to farming; storage of materials or products used in the course of the business of commercial activity, except as permitted by paragraph 2; and the storage of materials, products or by products generated in the course of business or commercial activity. The stipulation provided in paragraph 2 that activities that may constitute farming or a use accessory to farming under § 2.2 of the Ledyard Zoning Regulations may be permitted. The stipulation provided that these exceptions are to be strictly and narrowly construed. The court, Cosgrove J., entered judgment in accordance with the stipulation on December 1, 2016. Ledyard and Larkin moved for contempt because of noncompliance by Perkins Properties, LLC, with the December 1, 2016 judgment, and the court, Cole-Chu, J., granted the motion.

         The plaintiffs commenced the present action in 2015, and served their seven count fourth amended complaint in December, 2017. In the second count of that complaint, the plaintiffs alleged that the defendants' use of the Ledyard property for a landscaping business violated the Ledyard Zoning Regulations by reason of noise, safety, fumes and odors, and because commercial activity is prohibited in an R-80 zone. The plaintiffs sought injunctive relief and monetary damages.

         Following a trial, the court found that the plaintiffs proved only the allegations in the second count of the complaint.[2] The court determined that there was a nuisance per se pursuant to the defendants' deliberate violation of the terms of the stipulated judgment, which enjoined the defendants, on the basis of the Ledyard Zoning Regulations, from conducting commercial activity and related accessory uses on the Ledyard property. The court determined that, although the defendants claimed to operate a nonconforming farm, the only agricultural activity that took place on the property was Perkins' ownership of an uncertain number of cows that were kept in various grazing spots. The court concluded that the activity at issue did not fall under the farming exception in the stipulated judgment, which permitted farming activity pursuant to the Ledyard Zoning Regulations. The court ordered that no nonfarming activity take place on the Ledyard property and that no direct vehicular access, including off road conveyances, be had between the defendants' adjoining Ledyard and North Stonington properties. This appeal followed.

         The issue before us is whether the trial court properly determined that a certain use of land constituted a nuisance per se. ‘‘Although the existence of a [public or private] nuisance generally is a question of fact, for which we invoke a clearly erroneous standard of review . . . where the court makes legal conclusions or we are presented with questions of mixed law and fact, we employ a plenary standard of review . . . .'' (Internal quotation marks omitted.) Sinotte v. Waterbury, 121 Conn.App. 420, 438, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010). Under our case law, the question as to what constitutes a nuisance per se is one of law for the court. See Warren v. Bridgeport, 129 Conn. 355, 360, 28 A.2d 1 (1942); Beckwith v. Stratford, 129 Conn. 506, 510, 29 A.2d 775 (1942). Accordingly, our review is plenary. See Sinotte v. Waterbury, supra, 438.

         ‘‘A nuisance not originating in negligence is some- times characterized as an absolute nuisance [or a nuisance per se].'' (Internal quotation marks omitted.) Warren v.Bridgeport, supra, 129 Conn. 360. Significantly for the decision to be made in this appeal, a ‘‘nuisance per se . . . exists where there is a condition which is a nuisance in any locality and under any circumstances. . . . Such a nuisance as regards the use of land seldom, if ever, occurs; the same conditions may constitute a nuisance in one locality or under certain circumstances, and not in another locality or under other circumstances. To constitute a nuisance in the use of land, it must appear not only that a certain condition by its very nature is likely to cause injury but also that the use is unreasonable or unlawful.''[3] (Citation omitted.) Beckwith v.Stratford, sup ...


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