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Town of Bolton v. Thweatt

Superior Court of Connecticut, Judicial District of Tolland, Rockville

November 12, 2019

TOWN OF BOLTON
v.
LAURA THWEATT

          CORRECTED MEMORANDUM OF DECISION (CORRECTION TO MEMORANDUM OF DECISION DATED OCTOBER 23, 2019. CORRECTION MADE WAS THE WORDING CHANGED FROM WITHOUT TO WITHIN IN PARAGRAPH 6)

          SFERRAZZA, J.

         The petitioner, the town of Bolton, seeks injunctive relief, a civil fine, and attorney's fees in this land use regulation enforcement action pursuant to General Statutes § 8-12, to curtail alleged violations by the respondents, Laura Thweatt, Michael Gramegna, and Fresh Start General Remodeling and Contracting, LLC. Michael Gramegna is Ms. Thweatt's son and the owner of the LLC.

         The LLC has been defaulted for nonappearance. The petitioner also requests forfeiture of a $1, 000 cash bond posted on behalf of the LLC.

         The general rule governing injunctions is that the applicant must demonstrate that the failure to restrain the conduct which is the subject of the application will result in irreparable harm to the applicant and that no adequate remedy exists at law. This general rule is inapplicable, however, where a municipality seeks to enforce its zoning regulations under General Statutes § 8-12, and all that must be proven is a violation of the regulations, Fisette v. DiPietro, 28 Conn.App. 379, 388 (1992); Farmington v. Viacom Broadcasting, Inc., 10 Conn.App. 190, 197 (1987). Once the violation is established, the court must balance the equities and consider, inter alia, the gravity and/or wilfulness of transgressions and the impact on the landowners, Johnson v. Murzyn, 1 Conn.App. 176, 183 (1984).

         Zoning regulations "shall be enforced by the [zoning enforcement] officer or official board or authority designated therein," § 8-12. Under General Statutes § 8-6(a)(1), the Bolton Zoning Board of Appeals has the power and duty "[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the [zoning enforcement officer.]" This opportunity to appeal embraces challenges to cease and desist orders, Greenwich v. Kristoff, 180 Conn. 575, 578 (1980); Gelinas v. West Hartford, 225 Conn. 575, 595 (1993).

         In the present matter, the Bolton Zoning Enforcement Officer (ZEO), James Rupert, issued a cease and desist order on March 23, 2018, to the respondents by both regular and certified U.S. mail. Notice of the order was mailed to the correct post office box assigned to the LLC. On April 15, 2018, the certified letter was returned to the town as "unclaimed," despite attempted notification of its existence by the postal authorities on March 26, 2018.

         The cease and desist order prohibited the respondents from attempting to install an additional driveway at their residence located at 65 Shoddy Mill Road, Bolton, Connecticut, without first obtaining a permit. The order also required cessation of moving earth using heavy equipment without a permit as required by town ordinance. Rupert also ordered the respondents to restore the areas disturbed by such violations, within fourteen days, to "a stable condition by placing a minimum of 4 inches of topsoil and a cover crop approved by [Rupert]."

         The respondents contend that the cease and desist order was ineffective because they never actually received it. They are incorrect because § 8-12 only requires that the ZEO issue the order "in writing" to be "effective immediately."

         Where a statutory or regulatory provision omits the need for actual receipt, a notice requirement is satisfied through the act of mailing the notice to a legitimate postal address, Elm Buick Company v. Moore, 150 Conn. 631, 633-635 (1963); Stratton v. Abington Mutual Fire Insurance Company, 9 Conn.App. 557, 562-563 (1987); State v. Pueschel, 30 Conn.Supp. 556, 560-561 (Ct. App. Div. 1973).

         In the present case, Michael Gramegna conceded that the post office box in Manchester, Connecticut, to which the cease and desist order was sent, belonged to his business. He also testified that he infrequently checked that box for mail. It should be noted that Ms. Thweatt and Mr. Gramegna listed this post office box address on the permit application they submitted to the town.

         If actual receipt was necessary to activate a cease and desist order, the prospective recipient "would have it in his power to thwart" such receipt and prevent the cease and desist order from operation, Elm Buick Company y. Moore, supra. The respondents here "had the correlative obligation to call for the certified letter. . . upon being notified by the [post office] of its existence," Stratton v. Abington Mutual Fire Insurance Company, supra, 563.

         The respondents failed to react to the postal notification process alerting them that a certified letter had been received for delivery. That attempted alert occurred on March 26, 2018, and the post office returned the letter as "unclaimed" on April 15, 2018. Thus, the respondents had more than two weeks to check the post office box and discover that the certified letter awaited their call. No burden rests on the town to ensure that the respondents actually received the cease and desist order under these circumstances.

         On June 15, 2018, Rupert sent a notice of violation of zoning regulations to the respondents for keeping "many unregistered motor vehicles and associated parts" at 65 Shoddy Mill Road in contravention of Bolton Zoning Regulations § 3A1.7. which defines such action as comprising a junk yard. The notice requested removal of "all unregistered motor vehicles from the property" or risk further enforcement action by the town.

         The respondents ignored this request. Mr. Gramegna has repeatedly expressed his belief that a municipality lacks the power to regulate the storage of unregistered vehicles on private property. His view of the unconstitutionality of such a regulation motivates his deliberate refusal to comply.

         Noncompliance prompted issuance of another cease and desist order, dated July 11, 2018, which demanded that the respondents conform to the zoning regulation in question. This order was sent to the post office box described above, with the same result. The postal authorities left notification of the existence of the certified mail on July 13, 2018, and returned the certified letter as "unclaimed" on August 3, 2018.

         Section 2.C of the Bolton Zoning Regulations defines "Junk Yard" to include the following activity:

         "[A]ny other place of storage or deposit, including any business, which has stored or deposited two or more unregistered motor vehicles or used parts of motor vehicles or other waste or discarded or secondhand material which has been a part, or intended to be a part, of any motor vehicle, the sum of which parts or material shall be equal in bulk to two or more motor vehicles."

         Bolton Zoning Regulations § 3AI7.a prohibits storage of materials which possesses "the characteristics of a junk yard" as defined above. This provision also forbids storage of more than one unregistered motor vehicle, or equivalent in parts, or "one unregistered camp trailer, boat, or recreational home."

         The respondents never appealed from Rupert's issuance of the cease and desist orders to the zoning board of appeals. That omission greatly constrains this court's review when adjudicating the parties' claims. "It is well established that when a party has a statutory right to appeal from the decision of an administrative officer or agency, [the party] may not contest the validity of the order if the administrative officials seek its enforcement in the trial court after the alleged violator has failed to appeal," Sams v. D.E.P., 308 Conn. 359, 397-398 (2013), (emphasis added). That bar applies to cease and desist orders issued by a ZEO that, as noted above, can be appealed to the local zoning board of appeals, Gelinas v. West Hartford, supra, 595; Greenwich v. Kristoff, supra, 578-579.

         Consequently, this court must regard Rupert's cease and desist orders as correct when issued, i.e. that the respondents violated the enumerated zoning regulations and town ordinances as described therein. Specifically, the court must conclude that the respondents have moved earth with heavy equipment and attempted to excavate additional driveways without a permit; and have kept more than one ...


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