[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This action by the Town of Haddam seeks inter alia, to permanently enjoin the defendant "to cease and desist from using the subsurface sewerage disposal system on a year round basis."
After a full hearing, all parties present and/or represented by counsel, the court, by a preponderance of the credible, relevant and legally admissible evidence finds, determines and rules as follows:
The defendant, Nancy Kiniry, formerly Nancy LaPointe, is the owner of the premises, subject to this suit, which she purchased from Mary French by warranty deed recorded December 15, 1990. CT Page 2011
The Town, despite a memorandum from its engineer, Thomas Metcalf, issued in 1985, that the Town's failure to distinguish between seasonal and year round properties was a matter of concern, to the date of trial, has not promulgated standards or criteria to define seasonal or year round use. Such failure to define objectively ascertainable standards must be necessity rely on subjective determinations as to what constitutes such use. The requirement of standards is a fundamental aspect of constitutional law. Helbig v. Zoning Commission of Noank FireDistrict, 185 Conn. 294, 440 A.2d 940, 947 (1981).
The plaintiff has the burden of proving to the court that the septic system serving the premises is in violation of the health code. In this regard the plaintiff has failed to persuade the court.
The court expressly finds that the Town is using the health code to enforce its determination that it wishes to limit winterization of seasonal homes without promulgating regulations and standards upon which the public may rely in determining the classification of any given property.
The very nature of the plaintiffs prayer for relief ". . . injunctive relief requiring the defendant to cease and desist from using the subsurface sewage disposal described herein on ayear round basis," (emphasis added), indicates the Town's desire to limit winterization by use of the health code rather than definitive standards.
Further, the court finds that the subject property was, in fact, utilized by the previous owner during the winter months.
Accordingly, the court finds the issues for the defendant and enters judgment for the defendant, Nancy Kiniry, formerly Nancy L. LaPointe, against the plaintiff, Town of Haddam plus cost.
SPALLONE STATE TRIAL REFEREE
Judgment to enter in accordance with foregoing Memorandum of Decision.
Michael Kokoszka, Chief Clerk CT Page 2012