KIERAN DAY ET AL.
PERKINS PROPERTIES, LLC, ET AL.
February 13, 2019
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.
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. 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.
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.
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.
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.
a trial, the court found that the plaintiffs proved only the
allegations in the second count of the
complaint. 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.
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.
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.'' (Citation omitted.)
Beckwith v.Stratford, sup ...