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*********************************************** 
KIERAN DAY ET AL. v. PERKINS

PROPERTIES, LLC, ET AL.

(AC 41357)

DiPentima, C. J., and Lavine and Flynn, Js.

Syllabus

The plaintiffs, owners of real property in the town of Ledyard, sought to

recover damages for private nuisance from the defendant P Co. and

its sole member, the defendant P. P Co. owned certain real property

consisting of two contiguous parcels, one located in North Stonington

and the other in Ledyard, that abut the plaintiffs’ property. Both of the

defendants’ parcels are located in areas zoned for residential use that

prohibit the commercial use of the property. In a prior action, P Co.

had entered into a stipulated judgment with the town of Ledyard by

which it was enjoined from operating a landscaping business or a similar

commercial operation at its Ledyard property. The stipulated judgment

further provided that pursuant to the town’s zoning regulations, no

commercial activity was permitted in areas zoned for residential use

unless the activity constituted a permissible farming activity pursuant

to the town’s zoning regulations. Thereafter, the trial court in that action

held P Co. in contempt for its noncompliance with the stipulated judgment. The plaintiffs subsequently commenced this action, alleging, in

count two of their complaint, that the defendants’ operation of a landscaping business on its Ledyard property constituted a nuisance per se

because it violated the town’s zoning regulations by reason of noise,

safety, fumes and odors, and because the property was not zoned for

commercial activity. Following a trial to the court, the trial court rendered judgment for the plaintiffs on count two, from which the defendants appealed to this court. Held that the trial court improperly

concluded as a matter of law that the defendants’ operation of a landscaping business on its Ledyard property constituted a nuisance per se; the

defendants’ operation of a landscaping business did not constitute a

nuisance per se because it was not a use of land that, by its very nature,

constitutes a nuisance at all times regardless of locality or circumstance,

and the defendants’ violation of a local ordinance, which formed the

basis of the stipulated judgment and the court’s finding of nuisance per

se, was not, as a matter of law, sufficient in itself to constitute a nuisance

per se, which exists where there is a condition that is a nuisance in any

locality and under any circumstances, as local zoning regulations apply

only to a specific locality, what constitutes a nuisance in one locality

may not in another, and the allegations of the complaint limited the

nuisance to the landscaping business on the defendants’ property in

Ledyard that was being operated in a residential zone.

Argued February 13–officially released May 14, 2019

Procedural History

Action 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).
Opinion

FLYNN, J. The 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.1 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.

The 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.

In a 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 excep-
tions 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.

The 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.

Following a trial, the court found that the plaintiffs

proved only the allegations in the second count of the

complaint.2 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.

The 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.

‘‘A 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.’’3

(Citation

omitted.) Beckwith v. Stratford, supra, 129 Conn. 508.

‘‘Some things are unlawful or nuisances per se; others

become so, only in respect to the time, place or manner

of their performance.’’ Whitney v. Bartholomew, 21

Conn. 213, 217 (1851).

A landscaping business is not a use of land that,

by its very nature, constitutes a nuisance at all times

regardless of locality or circumstance. First, we note

that our case law most often has dealt with what is not

a nuisance per se. See Wood v. Wilton, 156 Conn. 304,

310, 240 A.2d 904 (1968) (refuse disposal operation not

nuisance per se but may be nuisance in fact as result

of manner of operation); Jack v. Torrant, 136 Conn.

414, 421, 71 A.2d 705 (1950) (undertaking establishment

not nuisance per se); Murphy v. Ossola, 124 Conn. 366,

371, 199 A. 648 (1938) (mere possession or use of dynamite caps not nuisance per se); Udkin v. New Haven,

80 Conn. 291, 294, 68 A. 253 (1907) (accumulated snow

on walkway did not constitute nuisances per se); Parker

v. Union Woolen Co., 42 Conn. 399, 402 (1875) (use of

steam whistle not nuisance per se); Whitney v. Bartholomew, supra, 21 Conn. 217 (‘‘[t]he trade and occupation

of carriage-making, or of a blacksmith, is a lawful and

useful one; and a shop or building, erected for its exercise, is not a nuisance per se’’).

Second, the nature of the complaint and the court’s

findings limit any unreasonable use of the land to a

specific locality and manner of performance. The allegations in the complaint limited the nuisance to a particular locality and stated, in essence, that the landscaping

business was pursued in an improper place, namely, in

an R-80 zone in Ledyard. The Ledyard Zoning Regulations, by their very nature, applied only to property

located in Ledyard. Furthermore, the terms of the stipulated judgment applied only to 576 Lantern Hill Road

in Ledyard and specified that certain activities were

prohibited to the extent the activities constituted commercial activity and not farming. The court noted these

limitations in its decision, stating that ‘‘the Ledyard

injunction applies to the Ledyard property, of course,’’

and on that basis did not find a nuisance per se for the

same commercial landscaping activity occurring on the
North Stonington property. The court found for the

defendants on count one of the complaint, which

alleged that the landscaping business constituted a private nuisance on the basis of employee mustering,

aggressive and threatening behavior by employees,

and noise.

The violation of a local ordinance, which formed the

basis of the stipulated judgment and the court’s finding

of nuisance per se, is not, as a matter of law, sufficient

in itself to constitute a nuisance per se.4

In certain cases,

a court may interpret local zoning regulations along

with other factors to determine whether a private nuisance exists. See Cummings v. Tripp, 204 Conn. 67,

79, 527 A.2d 230 (1987). It is axiomatic that local zoning

regulations apply only to a specific locality, and ‘‘[w]hat

constitutes a nuisance in one locality may not in

another.’’ Jack v. Torrant, supra, 136 Conn. 423. ‘‘[T]he

mere violation of a municipal ordinance does not make

the act in question a nuisance per se.’’ 58 Am. Jur. 2d

581, Nuisances § 14 (2012). For the foregoing reasons,

we conclude that the court’s finding of a nuisance per

se on the basis of violations of a local zoning ordinance,

which the defendants were enjoined from violating

under the terms of a stipulated judgment, was improper

as a matter of law.

The judgment is reversed and the case is remanded

with direction to render judgment in favor of the

defendants.

In this opinion the other judges concurred.

1 The defendants also claim that the court erred in enjoining them from

direct vehicular access, including off road conveyances, between the defendants’ adjoining Ledyard and North Stonington properties. The court found

that the plaintiffs only proved the second count of their complaint alleging

nuisance per se, and we reverse that judgment including any remedies

awarded therein. Accordingly, we need not address the merits of this claim.

2 The court clarified its judgment to note that the second count, as opposed

to the third count which alleged nuisance per se as to the North Stonington

property, had been proven.

3

‘‘A private nuisance is a nontrespassory invasion of another’s interest

in the private use and enjoyment of land. . . . The law of private nuisance

springs from the general principle that [i]t is the duty of every person to

make a reasonable use of his own property so as to occasion no unnecessary

damage or annoyance to his neighbor. . . . The essence of a private nuisance is an interference with the use and enjoyment of land.’’ (Citations

omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn.

345, 352, 788 A.2d 496 (2002).

4 Additionally, we note that count two of the complaint was not an action

to enforce a zoning regulation. See e.g., Cummings v. Tripp, 204 Conn. 67,

78–80, 527 A.2d 230 (1987) (right of property owners to seek injunction and

damages for nuisance affecting enjoyment of their property is supplemental

to right to seek injunctive relief from zoning authorities for violation of

zoning ordinance).