City of Stamford v. Kovac

Berdon, J.,

concurring in part and dissenting in part.

I agree that the trial court has the authority to issue a temporary mandatory injunction. See Doe v. Maher, 40 Conn. Sup. 394, 400, 515 A.2d 134 (1986) (in reciting the chronology of medicaid abortion litigation, the court refers to the entry of “a temporary mandatory injunction in favor of the [plaintiff] classes [poor women and certain physicians] ordering the defendants [state treasurer and commissioner of income maintenance] to pay, under the medicaid program, for the costs of all therapeutic abortions whether or not the life of the woman was endangered by carrying the fetus to term”).

I disagree, however, with the majority’s conclusion that the temporary mandatory injunction issued in this case is not appealable. The majority holds that it is not appealable because “if the defendants were finally to prevail, they could be fully compensated by way of monetary relief for any expenses incurred by them in complying with the court’s order.” There is nothing in the record, however, to support that statement. It is inappropriate for this court to make such a factual finding.

Based upon the facts that are before us, compliance with the temporary mandatory injunction requiring the removal of the fill would obviously interfere with the enjoyment of the land in its present state, which cannot be compensated through a monetary award. See Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 374, 84 A.2d 681 (1951) (indicating that the granting *104of immediate possession of real property to a utility pending a decision on the utility company’s petition to take the property under its delegated powers of eminent domain would be appealable); Rutkoski v. Zalaski, 90 Conn. 108, 114, 96 A. 365 (1916) (interference with a person’s use of his or her land constitutes irreparable injury). In this case, removal of the fill clearly would prevent the defendants from using the property in the state it was in prior to the removal.

There is a more compelling reason why the granting of this temporary mandatory injunction is an appealable order. This court recognized in Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 198-99, 629 A.2d 1116 (1993), that “[t]he legislature has expressed a strong public policy in favor of protecting and preserving the natural resources, and particularly the wetlands, of this state. ‘The inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed. The wetlands and watercourses are an interrelated web of nature essential to an adequate supply of surface and underground water; to hydrological stability and control of flooding and erosion; to the recharging and purification of groundwater; and to the existence of many forms of animal, aquatic and plant life. . . . The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.’ General Statutes § 22a-36; see Mario v. Fairfield, 217 Conn. 164, 168, 585 A.2d 87 (1991); Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 559-60, 552 A.2d 796 (1989); see also General Statutes § 22a-l.” In order to enforce this “emphatic statement of the importance of protecting *105wetlands”; Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., supra, 199; the legislature gave the Superior Court the power “to restrain a continuing violation of [the Inland Wetlands and Watercourses Act], to issue orders directing that the violation be corrected or removed and to assess civil penalties . . . .” General Statutes § 22a-44 (b). The plaintiff brought this action against the defendants pursuant to the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq.1

In view of §§ 22a-36 and 22a-44 (b), if the trial court had denied the temporary mandatory injunction sought by the plaintiff, the denial would have been an appeal-able order. This is clear because the failure to enter such an order could result in irreparable damage to the environment. The majority concedes this point when they state that an order would be appealable whenever “the mandatory action ordered by the trial court is not subsequently reversible if the trial court is found, upon appeal from the final judgment, to have exceeded its authority.”

Because a denial of the temporary mandatory injunction would have been appealable, it necessarily follows that the granting of the injunction should be appealable. Northeastern Gas Transmission Co. v. Brush, supra, a case relied upon by the majority, makes clear that appealability is a two-way street. The court reasoned that, because granting possession of another’s *106land to a utility company pending condemnation proceedings would be appealable, the denial of the order was necessarily appealable. Id., 374.

The majority claims that the “wisdom” of not allowing an appeal from a temporary mandatory injunction ordering abatement of an environmental hazard is “evident,” because otherwise the hazard would “continue unchecked during the pendency of the appeal process.” This claim ignores the fact that appealability is a two-way street—if the issuance of such an injunction cannot be appealed, then neither can the denial of such an injunction be appealed. Further, the majority conveniently overlooks our rule of appellate procedure that allows the trial judge to terminate an automatic stay of execution pending appeal. See Practice Book § 4046 (“if the judge who tried the case is of the opinion that an extension to appeal is sought or the appeal is taken only for delay or that the due administration of justice so requires that . . . judge may at any time, upon motion and hearing, order that the stay be terminated”).

Accordingly, I would also reverse the Appellate Court, but I would remand the matter to that court to determine whether the trial court properly issued the temporary mandatory injunction.

I am bewildered by footnote 2 of the majority opinion. The right of appeal provided by No. 93-244 of the 1993 Public Acts is very limited. It applies only if the commissioner of environmental protection finds that an activity “will result in or is likely to result in imminent and substantial damage to the environment, or to public health” and issues a cease and desist order pursuant to General Statutes § 22a-7. Number 93-244 of the 1993 Public Acts does not provide a right to appeal from a trial court order entered pursuant to General Statutes § 22a-44 (b), the statute pursuant to which the trial court in this case issued the temporary mandatory injunction.