KEVIN E. BOOTH, J.
INTRODUCTION
The Town of Sterling claims violations of motor vehicle, health, environmental and nuisance statutes allegedly resulting from conditions on defendant Rowland Littlefield's property. The defendant's response includes the assertion of Special Defenses of Estoppel and Selective Enforcement. A trial was held in December 2004 before Driscoll, J. A subsequent trial was held on June 7, 2007; at the court's direction, each side filed a post-trial brief regarding remedies.
FACTS
1. The Town of Sterling has no zoning commission.
2. The defendant, Rowland Littlefield, is the owner of property consisting of 27 1/2 acres, at 627 Bailey Pond Road in the Town of Sterling.
3. The defendant has owned the property since 1989.
4. The property is located in a very rural area.
5. The defendant owns and conducts a business at the property, under the name Baggaley, LLC.
6. The property's dirt drive is sloped. Scrap metal and other materials lining the driveway may interfere with a fire engine's access to the property.
7. There are approximately 40 unregistered motor vehicles on the property.
8. The defendant filed an application for a motor vehicle recycler's CT Page 14489 permit in July 2002. No hearing was held by the Board of Selectmen. No permit was issued.
9. The defendant does not possess a permit to operate a motor vehicle recycler's yard.
10. The defendant believes First Selectman Dale Clark authorized him to operate a motor vehicle recycler's yard, so long as he moved items to the rear of his property and out of sight.
11. The town has knowledge of several other properties in the area that also operate motor vehicle recycler's yards without permits, but has taken no action against those property owners.
12. On July 8, 2003, an environmental inspector conducted a visual inspection of the property from the road and from an adjacent property, and found potential for site activities to impact, or to have impacted, surface and groundwater resources.
13. On July 14, 2003, the Director of Health for the Northeast District Department of Health issued a Notice of Violation and Public Health Order against defendant, instructing the defendant to correct conditions on the property, such as excess tires, that "invite the breeding of mosquitoes and harborage for rodents."
14. On October 21, 2004, a sanitarian from the health district conducted a compliance inspection, and reported that he saw no garbage, swine, or sign of rodents, and no health nuisance.
15. There is no evidence that any health or environmental tests have been conducted either on or off the property.
16. There is no evidence that the property has caused any contamination, injuries or damages.
17. There is evidence that conditions on the property could potentially impact the environment and health.
CONCLUSIONS OF LAW COUNT ONE — MOTOR VEHICLE STATUTES
The court finds that the defendant is operating a motor vehicle recycler's yard without a permit, in violation of Conn. Gen. Stat. 14-67i., CT Page 14490
§ 14-67i. Certificate of approval of location; license required. Exceptions. (a) No person, firm or corporation shall establish, operate or maintain a motor vehicle recycler's yard or motor vehicle recycler's business unless a certificate of approval of the location to be used therefor has been procured from the board or authority designated by local charter, regulation or ordinance in the town, city or borough wherein such yard or business is located or is proposed to be located.
§ 14-67g. Definitions. "Motor vehicle recycler's business" or "motor vehicle recycler's yard" shall include any business and any place of storage or deposit, whether in connection with another business or not, which has stored or deposited two or more unregistered motor vehicles which are no longer intended or in condition for legal use on the public highways, or used parts of motor vehicles or old iron, metal, glass, paper, cordage 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. Said terms shall also include any place of business or storage or deposit of motor vehicles purchased for the purpose of dismantling the vehicles for parts or for use of the metal for scrap and where it is intended to cut up the parts thereof.
The court finds that the town failed its legal obligation to defendant by not providing a hearing on his application for a motor vehicle recycler's permit, in violation of Conn. Gen. Stat. 14-67k.
14-67k required that the town hold a hearing within sixty-five days of receipt of an application. The defendant applied for a permit in July 2002.
14-67k was repealed in October 2003 and, therefore, the court declines to order the town to hold a hearing on the defendant's 2002 permit application.
SPECIAL DEFENSES 1. Municipal Estoppel
"Two essential elements must be proven to establish municipal estoppel. First, "the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief . . . Second, "the other party must change its position in reliance on those facts, thereby incurring some injury." . . . Municipal estoppel is invoked only 1) with great caution, (2) when the resulting violation has been unjustifiably induced by an agent who has authority to handle such matters and (3) in special circumstances where it would be highly inequitable or oppressive to enforce the regulations . . . Generally, municipal estoppel may not be invoked against a public agency in the exercise of its governmental functions . . . An exception to that rule exists, however, for the party claiming estoppel who would suffer a substantial loss as a result of the municipality nullifying the acts of its agents." Ammirata v. Zoning Bd. of Appeals, 65 Conn.App. 606, 616-17 (2001) (emphasis in original; internal citations omitted).
a) Authority of First Selectman
For purposes of this proceeding, the court accepts the defendant's belief that First Selectman Dale Clark possessed the requisite authority to permit him to operate the recycler's yard, pursuant to 14-67i, so long as the defendant moved his personal property out of sight, to the rear of the property.
The court finds that the defendant began to move his personal property to the rear of the property in reliance on what he believed was Mr. Clark's direction and authority. However, evidence presented at trial showed that numerous items, including motor vehicle parts, remain alongside the drive in the front of the property. The defendant did not comply with what he believed were Mr. Clark's directions permitting him to operate the recycler's yard.
The court finds as a matter of law that the defendant did not rely on Mr. Clark's direction or authority to such an extent that it would be "highly inequitable or oppressive" to enforce the recycler's yard statute.
b) Failure to Hold Hearing
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While the town failed to hold the required hearing on the defendant's permit application, its failure did not induce the defendant to believe that the permit was granted.
Nor did the town's failure to hold the hearing induce the defendant to change his position such that he suffered a substantial loss or injury. Rather, the defendant simply continued to operate the recycler's yard irrespective of the town's failure to properly process his application.
The court finds as a matter of law that the defendant did not prove detrimental reliance. It would not be "highly inequitable or oppressive" to enforce the recycler's yard statute.
Therefore, the court denies the special defense of municipal estoppel.
2. Selective Enforcement
"The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike . . . A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person . . . The claimant has the burden of proving a selective enforcement claim." Cadlerock Props. J.V., L.P. v. Commissioner of Envtl. Protection, 253 Conn. 661, 670-71 (2000) (internal citations omitted).
The claimant must "identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently." Id. at 672 (emphasis in original).
The defendant claims a violation of selective enforcement based on alleged bad faith conduct by First Selectman Dale Clark. The bad faith claimed is the defendant's belief that Mr. Clark authorized him to continue to operate a motor vehicle recycler's yard without a permit, so long as the defendant moved his personal property out of sight, to the rear of the property.
Mr. Clark testified that the town has taken action against defendant because of specific conditions on the property, as well as the property's slope and proximity to groundwater sources, all of which increase the potential for the property to cause health and CT Page 14492 environmental harm.
Mr. Clark also testified as to four other properties that have two or more unregistered motor vehicles without a permit. The town has taken no action against those properties.
No evidence was provided regarding the conditions on the other properties. No evidence was provided regarding any risks of potential health or environmental harm on the other properties.
The court finds that the defendant did not prove that any specific identified property is similarly situated to defendant's property in all relevant aspects.
Therefore, the court denies the special defense of selective enforcement.
The court ruled against defendant on each special defense. The court finds for the plaintiff on Count One.
COUNT TWO — ENVIRONMENTAL POLLUTION
There is no evidence of actual pollution or of testing either on or off the property. However, conditions on the property could potentially cause or may have caused pollution.
Therefore, due to the operation of the motor vehicle recycler's yard, the court finds sufficient evidence to justify the entry and inspection of the property in the future for unreasonable pollution, impairment or destruction, pursuant to 22a-18(a).
COUNT THREE — PUBLIC HEALTH
The defendant presented evidence that he removed tires and other items from his property after he received the July 2003 order from the director of health. A sanitarian from the health district went to the property in October 2004 and reported no violations. It is not clear that any violation existed after October of 2004.
Nonetheless, due to the operation of the motor vehicle recycler's yard, the court finds sufficient evidence to justify the director of health or his authorized agent or a sanitarian to enter and inspect the property in the future under 19a-206(a) to determine whether or not nuisances and sources of filth injurious to the public health exist on the property. CT Page 14493
COUNT FOUR — NUISANCE
The court finds as a matter of law that there are four elements that a plaintiff must prove to succeed in a common-law public nuisance cause of action: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; and (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." Pestey v. Cushman, 259 Conn. 345, 355 (2002).
"Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety . . . Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land." Id. at 357.
Plaintiff relies on Brainard v. Town of West Hartford, 140 Conn. 631 (1954). In that case, plaintiffs alleged interference with their own CT Page 14495 land for damages (i.e., diminished property values) that had already occurred due to the prospect of a municipal dump being established in their residential area.
The damages alleged are potential health and environmental harm. There is no evidence that the property has caused actual injuries or damages. The court finds that the damages element was not proven.
The court finds for the defendant on common-law nuisance.
The court finds sufficient evidence to justify the director of health, or his authorized agent or a sanitarian to enter and inspect the property in the future under 19a-206(a) to determine whether or not nuisances and sources of filth injurious to the public health exist on the property.
ORDER
Pursuant to 14-67v, the court enjoins the defendant from further operation or maintenance of a motor vehicle recycler's yard or business. The court orders the defendant to pay the fine of $10 per day for violating Conn. Gen. Stat. 14-67i. The total penalty, running from the date of the defendant's application for a permit on July 31, 2002 to the date of trial, June 7, 2007, is $17,690.
§ 14-67v. Penalty. Injunction to restrain violation. Any person, or any officer or agent of any firm or corporation, who establishes, operates or maintains a motor vehicle recycler's yard or motor vehicle recycler's business in any location within a restricted district created under the provisions of this subpart (H), or establishes, operates or maintains such yard or business without procuring such certificate of approval from the local authority or establishes, operates or maintains an intermediate processor in violation of any provision of this subpart (H), or transports or hauls any motor vehicle or used parts of a motor vehicle in violation of any provision of this subpart (H) or violates any provision of this subpart (H), shall be fined not more than one hundred dollars or imprisoned not more than ninety days or both. Each day of such establishment, operation or maintenance in violation hereof shall constitute a separate offense. The Commissioner of Motor Vehicles may, after notice and hearing, impose a civil penalty of not more than two thousand dollars on any person, firm or corporation who establishes, operates or maintains such yard or business without a license. In addition to the penalties herein prescribed, the Commissioner of Motor Vehicles or the local authority, upon a violation of any of the provisions of this subpart (H), may bring an application to the superior court for the judicial district where such yard or business is located to enjoin a further operation or maintenance of such yard or business and to abate the same as a public nuisance. Said court may, upon finding such yard or business has been established, operated or maintained in violation of the provisions of this subpart (H), issue such injunction as it deems equitable and make such order for the discontinuance or abatement of such yard or business as a nuisance as it finds to be necessary, including authorization to the Commissioner of Motor Vehicles to enter such yard or business to eliminate, at the expense of the defendant, the conditions which constitute the violation of any provision of this subpart (H).
Pursuant to 22a-18(a), the court orders the defendant to permit entry to and inspection of the property. Although the court authorizes entry under 22a-18(a), the court did not render the type of equitable or declaratory relief against the defendant which would lead it to award discretionary costs provided for in 22a-18(e).
Pursuant to 19a-206, the court orders the defendant to permit entry to and inspection of the property by the health district. Although the court authorizes the director of health or an authorized agent or sanitarian to enter and inspect the premises under 19a-206(a), it does not at this time find present existence of nuisance as described in 19a-206(b) and, accordingly, awards no costs or penalties at this time CT Page 14494 pursuant to 19a-206(b) or 19a-206(e).
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