Opinion
No. CV08-4008478 S
May 7, 2008
MEMORANDUM OF DECISION RE APPLICATION FOR TEMPORARY INJUNCTION
The parties appeared before the court on March 24, 2008, for a hearing on the plaintiff's application for temporary injunction.
FACTS
On February 27, 2008, the plaintiff, Ridgefield Housing Authority (Housing Authority), commenced this action against the defendant, Ridgefield Water Pollution Control Authority (Water Pollution Authority). The following facts are undisputed: The plaintiff had recently completed the construction of four new buildings for a moderate income housing project known as the Prospect Ridge Expansion at 51 Prospect Street in Ridgefield, Connecticut. Each building consisted of five apartment units. On January 24, 2008, the plaintiff applied to the Ridgefield building inspector for a certificate of occupancy for the first two buildings. By letter dated January 25, 2008, the building inspector refused to issue a certificate of occupancy. The letter indicated that "all the required signoffs have not been completed" and that no certificate of occupancy would be issued for the remaining buildings without the defendant's approval. The defendant refused to give its approval because the plaintiff had failed to pay the sewer hook-up fee. The defendant had previously presented the plaintiff with a statement for payment in the total amount of $114,000 ($5,700 for each of the five units in four buildings).
Harvey Edelstein, the development consultant for this project, testified the development was to provide family housing in the "moderate income range" — which he said was $40,000-$60,000 gross income per year.
The defendant allowed the hook-up fee to be paid either in one lump sum or over a ten-year period at $570 per year per unit with a 3% additional charge on the declining balance. Since there existed a waiting list of families for the housing units, the plaintiff paid the first year installment of the hook-up fee to obtain certificates of occupancy and permit the families to move into the buildings.
The plaintiff subsequently filed a complaint and an application for temporary injunction requiring that the defendant: (1) "immediately cease levy or collection (sic) of sewer connection fees unless proper notice and hearing is provided"; (2) "immediately cease levy or collection (sic) of any special benefit assessment, regardless of label, and from otherwise interfering with the plaintiff's [payment in lieu of taxes] rights" as provided by General Statutes § 8-119gg and (3) be prohibited from withholding "signoffs" or approvals required by the Ridgefield Building Inspector or otherwise interfering with the certificates of occupancy issued to the plaintiff until further order of the court.
APPLICATION OF LAW TO FACTS
The standards pursuant to which a court analyzes an application for a temporary injunction are well defined. "The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Internal quotation marks omitted.) Rustici v. Malloy, 60 Conn.App. 47, 56, cert. denied, 254 Conn. 952 (2000). "It is clear that the power of equity to grant injunctive relief may be exercised only under demanding circumstances. Restraining the action of an individual or corporation by injunction is an extraordinary power, always to be exercised with caution, never without the utmost satisfactory reasons . . . [T]he issuance of an injunction rests in the sound discretion of the trial judge." (Internal citations and quotation marks omitted.) Anderson v. Latimer Point Management Corporation, 208 Conn. 256, 262 (1988).
To obtain a temporary injunction, the moving party must show: a) imminent, substantial, and irreparable harm; b) lack of an adequate remedy at law; c) likelihood of success on the merits; and d) that a balancing of the equities favors granting the injunction. Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 446 (1994); Moore v. Ganim, 233 Conn. 557, 569 n. 25 (1995). "These considerations involve essentially the application of familiar equitable principles in the context of adjusting the rights of the parties during the pendency of litigation until a final determination on the merits." (Citations omitted.) Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 458 (1985).
While irreparable harm need not be shown in a statutory injunction case ( Dept. of Transportation v. Pacitti, 43 Conn.App. 52, 58, cert. denied, 239 Conn. 631 [1996]), there is reason to believe that rule applies only to permanent injunctions. Sec Kwiatkowski v. Johnson, Superior Court, judicial district of Fairfield, Docket No. 0307032 (10/26/93) [10 Conn. L. Rptr. 311].
The Housing Authority's position is that the charge per unit ($5,700) is not a sewer hook-up fee (by which is meant a sewer connection fee) but a special benefit assessment which, under Conn. Gen. Stat. § 8-119gg, exempts it from payment of real property taxes and other charges — to include special benefit, assessments — otherwise payable to a municipality. The statute specifically references "sewerage system use charges" as exempt. The Water Pollution Authority's position is that the charge was a sewer "hook-up" fee — as distinct from a sewer system "use" fee. Resolution of this dispute requires an examination of the required showings.
The statute subjects the plaintiff to pay a sum determined by the municipality, which sum shall not be in excess of ten percent of the shelter rent of the occupied dwelling units. Such a payment is known as a PILOT payment ("payment in lieu of taxes").
The statute provides no further elucidation of the phrase "sewer system use" and, thus, under generally accepted principles of statutory construction, the court may conclude "use" denotes water "flow" — which is separate and apart from the hook-up process preparatory to usage. That distinction is observed on page 2 of plaintiff's Exh. 5, a two-page letter from the town's website.
As to the likelihood the movant (Housing Authority) will prevail on the merits at trial, there was not sufficient evidence adduced at the hearing for the court to conclude it will. There was no evidence offered — though the point was argued — that the per unit hook-up fee assessed here was in fact the highest hook-up fee in the state (and, thus, as counsel argued, it could not truly have been a hook-up fee but was a special benefit assessment); additionally, the amount charged could in fact be the highest hook-up fee assessed in this state and nevertheless be a hook-up fee. Nor was Mr. Goldenberg's testimony relevant since it was his representation that sewer "use" charges in Ridgefield were "hundreds of dollars" annually (as opposed to $5,700). Ms. Sue Manning, former chairperson of the Water Pollution Authority, testified to the defendant's need, in or about 1991, to pay for a loan it was required to obtain to finance a thirteen million dollar sewer expansion required by state mandate. Exhibit C provided residents legal notice of the Sewer Advisory Committee's recommendations regarding various fees structures to be imposed on identified user groups within the town as a way of paying for that expansion. With regard to "New" (Sewer) Users, an "Impact Fee," which Ms. Manning testified was to be a "connection fee" ranging from $823-$5,881 per unit ("Depending on date of joining"), was recommended and was to be further discussed at a public hearing on January 27, 1992. The defendant's minutes of a February 5, 1992, meeting (Exh. E) reported there had in fact been a "recent public hearing" and that the majority opinion of those present at that meeting was to increase the cost of future hook-ups as a way to re-pay the loan; the suggestion was that the hook-up fee be increased to $2,926 with a 2 to 3% increase per year (Page 2 of Exh. A suggests that, in 1991, the hook-up fee was $750/unit). Exhibit F, the minutes of a special meeting on February 26, 1992, again reflected the feeling of the defendant agency that expansion costs ought be borne by "new users" and, by March 11, 1992, when the Water Pollution Authority considered two options for repaying the loan for the sewer plant expansion and upgrade, a sewer hook-up cost of $5,800 first appeared. The second refinancing option was to pay for the expansion out of the tax base. Exh. G, p. 2. Both options were proposed for a public meeting on April 2, 1992 ( Id). Legal notice of that meeting was published on March 19, 1992 (Exh. H). Of some interest is that no minutes of that meeting were provided the court. At the April 8, 1992 meeting, reference is, however, made to a recent public hearing at which the two options just discussed were reviewed with the motion in support of new users financing the costs in question passing. Exh. I. Legal notice of the newly adopted sewer charges was published on April 20, 1992; the charge for future sewer hook-ups was noted to be $5,700. Exhs. J, K. The plaintiff recalled Mr. Edelstein in rebuttal; the gentleman testified that one main sewer line servicing all four buildings in the project was installed but that each building had a "connection." The value of that testimony is unclear to the court.
Nor is it clear that the Housing Authority may benefit from the protection of § 8-119g upon which it relies. Section 8-119gg provides in relevant part: "In lieu of real property taxes, special benefit assessments and sewerage system use charges otherwise payable to a municipality, a housing authority approved by the Commissioner of Economic and Community Development for state financial assistance for a low income housing project, shall pay each year, to the municipality in which any of its housing projects for low income families are located, a sum to be determined by the municipality with the approval of the Commissioner of Economic and Community Development . . ." (Emphasis added.) Prospect Ridge Expansion is a "moderate" — not "low" — income housing project. General Statutes § 8-39 states: "The following terms, wherever used or referred to in this chapter, shall have the following respective meanings, unless a different meaning clearly appears from the context . . . (1) `Municipality' means any city, borough or town. `The municipality' means the particular municipality for which the housing authority is created . . ." (Emphasis added.)
A municipal entity authorized to deliver sewer services, such as this defendant, is not a "municipality" under § 8-39(1) because not a city, borough or town. See Metropolitan District v. Housing Authority, 12 Conn.App. 499, 506, cert. denied, 205 Conn. 814 (1987); See also, Housing Authority v. Water Pollution Control Authority, Superior Court, judicial district of New London, Docket No. 102447 (April 19, 1996, Teller, J.) (16 Conn. L. Rptr. 496); Housing Authority v. Water Pollution Control Authority, Superior Court, judicial district of New London, Docket No. 102447 (September 24, 1993, Hendel, J.) (8 C.S.C.R. 1090). In Metropolitan District v. Housing Authority, supra, the housing authority of the city of Hartford claimed it was exempt from sewer service charges under the comparable payment in lieu of taxes statute for moderate rental housing. General Statutes § 8-71. The Metropolitan District was "a municipal corporation authorized, inter alia, to deliver water and sewer services to the residents of the Metropolitan District, which includes the city of Hartford." 12 Conn.App., at 500. The Court stated: "The [Metropolitan District] is not a `municipality' within the meaning of General Statutes § 8-71 as defined in General Statutes § 8-39(1), for it is not a `city, borough or town.'" The [Metropolitan District] "certainly is not `the municipality' referred to in § 8-71, for it is not `the particular municipality for which a particular housing authority is created," as defined in § 8-39(1). That entity is the city of Hartford." Id. at 506-07. No reason presents why the same argument here advanced by the plaintiff Housing Authority should experience a different fate.
General Statutes § 8-71 is nearly identical to § 8-119gg. Section 8-71 provides in relevant part: "In lieu of real property taxes, special benefit assessments and sewerage system use charges otherwise payable to such municipality . . ., an authority shall pay each year to the municipality in which any of its moderate rental housing projects are located a sum to be determined by the municipality, with the approval of the Commissioner of Economic and Community Development . . ."
Virtually the same issue was raised in the context of an application for a temporary injunction in Housing Authority v. Water Pollution Control Authority, supra. There, the housing authority sought to enjoin the water pollution control authority from assessing sewer use charges, claiming exemption under the payment in lieu of taxes statute for elderly housing (General Statutes § 8-118a). The elderly housing section of the General Statutes provides its own definition for "municipality" under General Statutes § 8-113a(b), but the definition is identical to that found in § 8-39(1). In that case, Judge Hendel stated: "Section 8-118a does not apply to the present case because [the water pollution control authority] is not a municipality as defined by Section 8-113a(b) but is rather a separate municipal entity created pursuant to General Statutes § 7-246." The court denied the application for temporary injunction.
General Statutes § 8-118a is nearly identical to § 8-119gg. Section 8-118a provides in relevant part: "In lieu of real property taxes, special benefit assessments and sewerage system use charges otherwise payable to a municipality, a local authority shall pay each year, to the municipality in which any of its housing projects for elderly persons is located, a sum to be determined by the municipality with the approval of the Commissioner of Economic and Community Development . . ."
General Statutes § 8-113a(b) provides: "`Municipality' means any city, borough or town. `The municipality' means the particular municipality for which a particular housing authority is created."
General Statutes § 7-246(a) provides in pertinent part: "Any municipality may, by ordinance . . . create a new board or commission to be designated as the water pollution control authority for such municipality."
Subsequently, the court, Teller, J., denied the plaintiff's application for a permanent injunction stating: "I agree with Judge Hendel's holding that § 8-118a has no application to this case because [the water pollution control authority] is not a municipality . . ." Housing Authority v. Water Pollution Control Authority, supra, 16 Conn. L. Rptr. 496.
In view of all of the above, this court cannot now conclude it is likely the plaintiff will prevail on the merits at trial.
Nor is the court persuaded there has been a showing of imminent, substantial, and irreparable harm. While the amount to be paid is clearly more than a nominal sum, the "harm" claimed is not "imminent;" it has already occurred. With regard to whether the harm is "substantial," such characterization may depend upon the value to the consumer of the service provided (here, a hook-up necessary to insure the flow of water and waste). The circumstances imposed here are clearly made less draconian by the Water Pollution Authority's ability to provide relief by way of a ten-year payout.
Nor is there the lack of an adequate remedy at law since, at the conclusion of the trial on a permanent injunction, the court may grant the plaintiff's fourth request for relief in the Verified Complaint — a "refund of all payments made . . . in excess of [what is determined to be] a fair and reasonable connection fee."
The fifth request for relief is that the court grant "[s]uch other and further relief as `in law' or equity may appertain."
CONCLUSION
A weighing of the equities does not favor the granting of a temporary injunction; the application is hereby denied.