Superior Court of Connecticut, Judicial District of Tolland, Rockville
CORRECTED MEMORANDUM OF DECISION (CORRECTION TO
MEMORANDUM OF DECISION DATED OCTOBER 23, 2019. CORRECTION
MADE WAS THE WORDING CHANGED FROM WITHOUT TO WITHIN IN
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.
has been defaulted for nonappearance. The petitioner also
requests forfeiture of a $1, 000 cash bond posted on behalf
of the LLC.
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
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
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.
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]."
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
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).
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.
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.
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.
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.
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.
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.
2.C of the Bolton Zoning Regulations defines "Junk
Yard" to include the following activity:
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
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."
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.
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 ...