University of Vermont AAHS

Havlicek v. Hills

Connecticut Superior Court
UNPUBLISHED,
2003 WL 22962871
December 5, 2003

Summary of Opinion

Plaintiff Havlicek, City of Middletown’s Director of Health, brought a nuisance lawsuit against the defendants Hills to require them to confine their horses to not closer than 200 feet from their neighbor’s property and to require defendants to properly abandon an un-used water well on their property.  In this trial court opinion, the Superior Court says that the Connecticut agricultural protection act prevents the city from imposing the set-back requirement it sought but that the defendants are required property to abandon the water well.

Text of Opinion

The City of Middletown's Director of Health brought this action, dated August 28, 2003, for the abatement of nuisances, seeking injunction relief.

 After a hearing, the court, based on the preponderance of the credible, relevant, reliable and legally admissible evidence and the reasonable rational and lawful inferences to be drawn therefrom, finds and rules as follows.

 The defendants own the property, subject to this matter, which consists of approximately forty-eight acres, twenty-eight acres of which are pasture presently used for the boarding of horses.  The remaining twenty acres contain the homestead, barns and outbuilding.  The property has been used as a farm since 1898.

 In 1999, the defendants sold an adjoining piece of property to Roland and Stephanie Bonelli.  After approval by the City of Middletown, the Bonellis erected a residence on the property which included a well.  A dispute arose between the parties concerning the pollution of the Bonelli's well by the operation of the farm by the defendants.  The dispute was settled between the parties and the defendants agreed to move a fence line so that the distance between the farm operation would be no closer than seventy-five feet from the Bonellis' well.

 In March of 2003, the Bonellis again complained that the farm operation of the defendants created a nuisance because the horses were corralled too close to their property.

 On April 1, 2003, the city issued a legal notice to the defendants indicating that they were in violation of city and state ordinances and ordered the defendants to, or before April 21, 2003, move the fence line so that it would be no closer than two hundred feet from the Bonellis' dwelling and to properly abandon the inactive well with the corral area.  The defendants did not appeal this notice to the State Department of Public Health.

 The defendants contend that the injunction should not enter because the city's enforcement of its ordinance and the State Health Code are preempted and unenforceable as a result of the Right to Farm Act, Gen.Stat. Sec. 19a-341.

 The so-called Right to Farm Act exempts farming operations from being constituted a nuisance where the farming practices conform to generally accepted agricultural practices.  The State Department of Agriculture issued a report indicating that the defendants' farming activities were in conformance with generally accepted agricultural practices.

 Gen.Stat. Sec. 19a-341 excludes the pollution of public or private water supplies from its operation.

 The defendants' property includes a well which is located in an area where the horses are corralled.  The well is not in use, but has not been properly abandoned in accordance with specific procedures set forth in the State Public Health Code.

 The plaintiff argues that the defendants, having failed to appeal its orders, must comply with them.

 However, the plaintiff brought this action seeking an injunction ordering compliance with its orders.  An injunction is an equitable proceeding and should be granted only when the right to same is unequivocal.

 In order to determine, in the first instance, if an injunction is warranted, the court must determine whether the order, subject to the injunctive relief sought, is lawful.

 The order requiring the defendants to move the fence line so that it is no closer than two hundred feet from the Bonellis' dwelling is in violation of Gen.Stat. 19a-341, which exempts farming operations from being declared a nuisance where such operations conform to generally acceptable farming procedures.  Equity will not mandate the enforcement of an illegal order.

 As to the matter of the well, this court agrees that the status of the well is subject to the city's ordinances because the possibility of pollution of private or public water supplies excludes the well from the purview of 19a-341.

 The defendants did not appeal from the plaintiff's order with regard to the well and are precluded from contesting same for failure to pursue their administrative remedy with regard to the well.

 Accordingly, judgment may enter denying an injunction to enforce the order requiring the defendants to erect a fence no closer than two hundred feet from the Bonellis' dwelling and granting an injunction to enforce the order regarding the well located on the defendants' property where the horses are corralled.

 The defendants are ordered to properly abandon the well within sixty days of the date of this judgment or pay a penalty of $250.00 per day for each day said nuisance is maintained after the sixty-day period ordered for compliance.  No costs to either party.


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