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Home My WebLink AboutDraft Injunction Pleadings for Montville v Passero IPM.Note Draft Injunction Pleadings for Montville v. Passero Colleen Bezanson Critton, Beth Colleen Bezanson Colleen Bezanson SMTP BCritton@goodwin.com Draft Injunction Pleadings for Montville v. Passero EX /O=MICROSOFTONLINE/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=CBB51D09-0908-4134-AECD-A8C49FC60807 EX /O=MICROSOFTONLINE/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=CBB51D09-0908-4134-AECD-A8C49FC60807 EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 Received: from mail4-db3-R.bigfish.com (213.199.154.135) by smtp-red001.mail.microsoftonline.com (10.8.230.16) with Microsoft SMTP Server (TLS) id 8.3.213.2; Tue, 29 Nov 2011 13:50:20 -0800 Received: from mail4-db3 (localhost [127.0.0.1]) by mail4-db3-R.bigfish.com (Postfix) with ESMTP id 53139500446 for <CBezanson@montville-ct.org>; Tue, 29 Nov 2011 21:49:27 +0000 (UTC) X-SpamScore: -13 X-BigFish: Vvps-13(zz9371Kc85fhfecM103eMzz1202hzzz2dh87h2a8h668h839h8e3h34h) X-Forefront-Antispam-Report: CIP:216.82.241.99;KIP:(null);UIP:(null);IPV:NLI;H:mail51.messagelabs.com;RD:mail51.messagelabs.com;EFVD:NLI X-FB-DOMAIN-IP-MATCH: fail Received: from mail4-db3 (localhost.localdomain [127.0.0.1]) by mail4-db3 (MessageSwitch) id 1322603366928508_4179; Tue, 29 Nov 2011 21:49:26 +0000 (UTC) Received: from DB3EHSMHS007.bigfish.com (unknown [10.3.81.248]) by mail4-db3.bigfish.com (Postfix) with ESMTP id DBA31680045 for <CBezanson@montville-ct.org>; Tue, 29 Nov 2011 21:49:26 +0000 (UTC) Received: from mail51.messagelabs.com (216.82.241.99) by DB3EHSMHS007.bigfish.com (10.3.87.107) with Microsoft SMTP Server (TLS) id 14.1.225.22; Tue, 29 Nov 2011 21:49:28 +0000 X-Env-Sender: BCritton@goodwin.com X-Msg-Ref: server-12.tower-51.messagelabs.com!1322603410!105888958!1 X-Originating-IP: [65.164.152.163] X-StarScan-Version: 6.3.6; banners=-,-,- X-VirusChecked: Checked Received: (qmail 17294 invoked from network); 29 Nov 2011 21:50:10 -0000 Received: from email.goodwin.com (HELO HFDVEXET1.shipman.com) (65.164.152.163) by server-12.tower-51.messagelabs.com with AES128-SHA encrypted SMTP; 29 Nov 2011 21:50:10 -0000 Received: from hfdpexmb1.shipman.com (10.100.0.26) by email.goodwin.com (192.168.2.18) with Microsoft SMTP Server (TLS) id 8.2.176.0; Tue, 29 Nov 2011 16:51:50 -0500 Received: from hfdpexmb1.shipman.com ([10.100.0.26]) by hfdpexmb1.shipman.com ([10.100.0.26]) with mapi; Tue, 29 Nov 2011 16:50:11 -0500 From: "Critton, Beth" <BCritton@goodwin.com> To: 'Colleen Bezanson' <CBezanson@montville-ct.org> Date: Tue, 29 Nov 2011 16:50:11 -0500 Subject: Draft Injunction Pleadings for Montville v. Passero Thread-Topic: Draft Injunction Pleadings for Montville v. Passero Thread-Index: Acyu3537AuE1YzdzSxWR+SyLrSRDUQAAB0Pw Message-ID: <8E743B944FA57A4ABC4F71DFE57373AC01F65C5DDB@hfdpexmb1.shipman.com> Accept-Language: en-US Content-Language: en-US X-MS-Has-Attach: yes X-MS-TNEF-Correlator: acceptlanguage: en-US Content-Type: multipart/mixed; boundary="_004_8E743B944FA57A4ABC4F71DFE57373AC01F65C5DDBhfdpexmb1ship_" MIME-Version: 1.0 Return-Path: BCritton@goodwin.com Critton, Beth SMTP BCritton@goodwin.com Colleen Bezanson Passero 67 Lake Dr Draft Injunction Pleadings for Montville v. Passero Colleen, Attached, for your review and comment, are drafts of the injunction pleadings. I particularly need your careful review of your Affidavit. If there is anything that is in any way inaccurate, please let me know. There is a blank in Paragraph 4 of the Affidavit that needs filling in. Also, I realize that I have drafts of the letter that you sent to the Passeros on or about October 11, 2011, but I do not have a copy of the actual letter and need one for my file. If the date you sent it is a date other than the one on the letter, please let me know the date of mailing. Have you had a chance to drive by the property in the last few days? I will separately send you a recent decision involving some similar issues in Branford. It gives you an idea of the type of testimony that you will need to provide if there is a hearing on the temporary injunction. You will note that Branford began assessing fines even before it filed the injunction action, which is something that the Commission might consider. Thank you for your help. Best, Beth Beth Bryan Critton Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103-1919 Phone (Direct): (860) 251-5662 Fax: (860) 251-5318 THIS MESSAGE IS ONLY FOR THE USE OF THE ADDRESSEE AND MAY CONTAIN CONFIDENTIAL AND PRIVILEGED INFORMATION. Any dissemination or copying of this communication other than by the intended recipient(s) is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and destroy all copies of this communication. Thank you. ________________________________ From: McConnell, Germaine R. Sent: Tuesday, November 29, 2011 4:41 PM To: Critton, Beth Subject: Montville v. Passero <8E743B944FA57A4ABC4F71DFE57373AC01F65C5DDB@hfdpexmb1.shipman.com> Colleen Bezanson Colleen Bezanson EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 Colleen Bezanson EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 Colleen Bezanson Critton, Beth Critton, Beth CBB51D09-0908-4134-AECD-A8C49FC60807 CBB51D09-0908-4134-AECD-A8C49FC60807 MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=MONTVILLECT.ONMICROSOFT.COM-55785-CBEZANSON@MONTVILLE-CT.ORGFF0 en-US II=0101CECF96225EFA8CEECD1CDB498E018D7D8D51BF00;Version=Version 15.0 (Build 785.0), Stage=H4 en Vvps-13(zz9371Kc85fhfecM103eMzz1202hzzz2dh87h2a8h668h839h8e3h34h) [65.164.152.163] Checked server-12.tower-51.messagelabs.com!1322603410!105888958!1 6.3.6; banners=-,-,- BCritton@goodwin.com Anonymous VA3DIAHUB036.RED001.local -13 CIP:216.82.241.99;KIP:(null);UIP:(null);IPV:NLI;H:mail51.messagelabs.com;RD:mail51.messagelabs.com;EFVD:NLI fail CBezanson@montville-ct.org 00000002167573c2-1911-4265-8a5e-6b6d08ec1330@montville-ct.org/o=ExchangeLabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=MONTVILLECT.onmicrosoft.com-55785-CBezanson@montville -ct.orgff0 Colleen Bezanson EX /O=MICROSOFTONLINE/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=Cbb51d09-0908-4134-aecd-a8c49fc60807 CBezanson@montville-ct.org Colleen Bezanson /O=MICROSOFTONLINE/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=Cbb51d09-0908-4134-aecd-a8c49fc60807 2069382_1.DOCDOCKET NO. : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER ____, 2011 APPLICATION FOR TEMPORARY INJUNCTION AND ORDER TO SHOW CAUSE The plaintiff Inland Wetlands Commission of the Town of Montville (“Commission”) hereby respectfully applies to this Court for an order directing the defendants Shawn J. Passero and Katie L. Passero to appear before the Court to show cause why a temporary injunction should not issue. This Application is submitted upon plaintiff's Verified Complaint, verified by Colleen Bezanson, in her capacity as former and current Wetlands Enforcement Officer. The Verified Complaint states facts showing that the defendants are presently violating the Montville wetlands regulations by conducting regulated activities without a permit. The defendants have removed and/or disturbed material within a regulated area and deposited material within a waterbody. Oxoboxo Lake, without applying for a permit (the "Unauthorized Activities") at their property located at 67 Lake Drive in Oakdale. In addition, the defendants have continued to do so notwithstanding the issuance of Cease and Desist Orders dated July 12, 2011, July 22, 2011, August 16, 2011, and September 19, 2011 and letters from the Montville Town Attorney, dated October 5, 2011, and from the Wetlands Enforcement Officer, dated October 11, 2011. As a result of this violation, and in accordance with the Prayer for Relief in the Verified Complaint, plaintiff respectfully requests that a temporary injunction be issued forthwith ordering the defendants Shawn J. Passero and Katie L. Passero to cease the Unauthorized Activities, to submit a completed wetlands application to the Commission, and to restore the property as required by the Commission. The Town of Montville has sufficient assets to answer to any damages in the event it should fail to prosecute this action to effect. Plaintiff therefore requests that the requested injunction issue without bond. No previous application for the injunctive relief requested herein has been made. WHEREFORE, plaintiff respectfully requests that the Court grant this Application and order the defendants to appear before this Court to show cause why a temporary injunction should not issue. PLAINTIFF, INLAND WETLANDS COMMISSION OF THE TOWN OF MONTVILLE By Beth Bryan Critton For Shipman & Goodwin LLP Its Attorneys 2069382v1 / s1 DOCKET NO. : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER ____, 2011 MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION In support of their Application for a Temporary Injunction presented herewith, plaintiff Montville Inland Wetlands Commission ("Commission"), the municipal agency designated by the Town of Montville to exercise the powers granted by Chapter 440 of the General Statutes, and Colleen Bezanson, the Wetlands Enforcement Officer of the Town of Montville ("WEO"), respectfully submit the following brief summary of the law governing this action. I. INTRODUCTION. As demonstrated in the Verified Complaint, the Commission has adopted wetland regulations ("Regulations") pursuant to § 22a-42 of the General Statutes, which it and the WEO have the authority and the obligation to enforce pursuant to § 22a-44 of the General Statutes and § 13 of the Regulations. The Regulations govern regulated activities proposed and conducted in the Town of Montville. The defendants, Shawn J. Passero and Katie L. Passero, own real property at 67 Lake Drive in Oakdale, Connecticut (the "Property"). The defendants' conduct of regulated activities at the Property in violation of the Regulations is enforceable under § 22a-44 of the General Statutes and § 13 of the Regulations. On July 12, 2011, the WEO issued a Cease and Desist Order regarding the defendants' illegal activities. The Order directed the defendants to "cease and desist" activities at the Property that are unauthorized regulated activities, including but not limited to removal and/or disturbing of material within a regulated area and depositing material within a waterbody. The Order also informed the defendants that the matter would be discussed at the next Commission meeting on July 21, 2011. The Order was sent to the defendants by Certified Mail and regular first class mail. The defendants failed to appear before the Commission on July 21, 2011. In a further effort to provide the defendants with an opportunity to show cause why the Order(s) should not remain in effect, the Commission held the item open to its next meeting on August 18, 2011 and sent a second notice and Cease and Desist Order to the defendants via Certified Mail and regular first class mail. On August 16, 2011, the WEO sent a third letter to the defendants, again ordering them to cease and desist and advising the defendants that the matter would be brought up at the September 15, 2011 meeting. The meeting was rescheduled to September 22, 2011 and, on September 19, 2011, the WEO sent a letter to the defendants notifying them of the change of meeting date and advising them of the issuance of a Cease and Desist Order. The defendants again failed to attend or to send a representative or any form of communication to the Commission. On the basis of the facts in the record and the lack of any showing to the contrary by the defendants, the Commission referred the matter to its Town Attorney on or about October 4, 2011. The Town Attorney wrote to the defendants on October 5, 2011. Defendant Shawn Passero called the Town Attorney on October 6, 2011, acknowledged previous receipt of notice of the Cease and Desist Orders, and said that he would submit an application to the Commission. He subsequently requested a wetlands permit application from the WEO, which she sent to him on or about October 11, 2011. The defendants did not appeal or otherwise contest the Commission's cease and desist orders. The defendants have since failed to apply for a wetlands permit and failed to take any steps to stabilize the site, and have continued their unauthorized regulated activities at the Property in violation of the Order. Their actions violate §13 of the Regulations and § 22a-44 of the General Statutes. II. THE PLAINTIFF IS ENTITLED TO A TEMPORARY INJUNCTION. "A temporary injunction is a preliminary order of the court, granted at the outset or during the pendency of an action, forbidding the performance of the threatened acts described in the original complaint until the rights of the parties respecting them shall have been finally determined by the court." Deming v. Bradstreet, 85 Conn. 650, 659 (1912). In deciding whether a temporary injunction should be granted, the court must balance the equities, "and if it appears that to deny . . . it may result in great harm to the plaintiff and little to the defendant, the court may well exercise its discretion in favor of granting . . . it, unless indeed, it is very clear that the plaintiff is without legal right." GDC Naugatuck v. Borough of Naugatuck, 1992 WL 48609 (1992), quoting, Olcott v. Pendleton, 128 Conn. 292, 295 (1941). In most cases, "[a] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. . . ." Scinto v. Sosin, 51 Conn. App. 222, 245 (1998) (Internal quotation marks omitted). However, “[i]n seeking an injunction pursuant to [General Statutes] § 8-12, the town is relieved of the normal burden of proving irreparable harm and the lack of an adequate remedy at law because § 8-12 by implication assumes that no adequate alternative remedy exists and that the injury was irreparable." Gelinas v. West Hartford, 225 Conn. 575, 588 (1993) (citations omitted). "The town need prove only that the statute or ordinances were violated." Id. "The proof of violations does not, however, deprive the court of discretion and does not obligate the court mechanically to grant the requested injunction for every violation." Conservation Commission v. Price, 193 Conn. 414, 430 (1984). "A decision to grant or deny an injunction must be compatible with the equities in the case, which should take into account the gravity and willfulness of the violation, as well as the potential harm to the defendant." Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 516, 527 (1996) (citation omitted). "A willful act is one done intentionally or with reckless disregard of the consequences of one's conduct." Id. "Willfulness in violating a regulatory statute implies not so much malevolent design as action with knowledge that one's acts are proscribed or with careless disregard for their lawfulness or unlawfulness." Id. III. PLAINTIFF IS ENTITLED TO INJUNCTIVE RELIEF BECAUSE THE DEFENDANTS' ACTIONS ARE UNAUTHORIZED AND ILLEGAL AND THE PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIM. A. The Commission Regulates Activities Pursuant To State Statute. The Commission may regulate activities pursuant to statute and the Regulations. The defendant must seek a permit to conduct activities. See Conn. Gen. Stat. § 22a-42a(c)(1). B. The Commission Required The Defendants To Cease And Desist Unauthorized Activities, To Appear Before The Commission, To Apply For A Wetlands Permit And To Restore The Disturbed Area. The Cease and Desist Orders require the defendants to cease the unauthorized activities on the Property, including, without limitation, removal and/or disturbing material within a regulated area and depositing material in a waterbody without a permit. On October 6, 2011, defendant Shawn Passero acknowledged receipt of notice of the Cease and Desist Orders and represented to the Town Attorney that he would apply to the Commission for a permit to address the wetlands violations, but he later failed and refused to do so. IV. AN INJUNCTION IS AN APPROPRIATE REMEDY AGAINST A WILLFUL VIOLATION OF THE ZONING REGULATIONS. An equitable consideration of the issues favors the issuance of a temporary injunction to halt the defendants' continued, willful violation of the Commission's Regulations. The Commission seeks to enforce its Regulations, which apply uniformly to every citizen in the Town of Montville, and are necessary to protect the regulated resources – the wetlands and watercourses and, in particular, Oxoboxo Lake. Enjoining the defendants from their continued disregard of the Regulations that apply to them still leave the defendants with an option: They must appear before the Commission to request a permit for the conduct of the already conducted unauthorized activities and for any future activities within the scope of the Regulations and, if so ordered by the Commission, must remediate and restore the regulated area. “In deciding whether a [temporary injunction] should be granted . . ., the court is called upon to balance the results which may be caused to one party or the other, and if it appears that to dissolve it may result in great harm to the plaintiff and little to the defendant, the court may well exercise its discretion in favor of its continuance, unless indeed it is very clear that the plaintiff is without legal right.” Olcott v. Pendleton, 128 Conn. 292, 295 (1941). The plaintiff has demonstrated both its legal right to the injunctive relief it seeks – the enforcement of their Regulations – and the great harm that will result if the injunction is not granted. On the other hand, the defendants' harm is of their own making. The defendants have disregarded the Cease and Desist Orders and have failed to abide by the representation of Shawn J. Passero made to the Town Attorney on October 6, 2011 and to the WEO on or about October 11, 2011 that he would apply for a permit. The defendants have chosen to willfully disregard the Regulations. Because great harm will result to the Commission, the WEO, the Town of Montville, and its interest in protecting the wetland and watercourse related natural resources within its boundaries, an injunction should be issued to stop the defendants' willful violation of the Commission's Regulations. V. CONCLUSION. Plaintiff is entitled to temporary injunctive relief against the defendants' continued disregard and violation of the Commission's Regulations. The Commission and the WEO have an important public obligation to enforce the Regulations and to apply them equally to all parties. The defendants' willful violation of the Regulations undermines the important public benefit of the Regulations and unfairly benefits the defendants for violating the Regulations and the Orders. The plaintiff has also demonstrated a reasonable likelihood of success on the merits of its claim. Plaintiff has demonstrated that the harm it and the citizens of Montville will suffer absent a temporary injunction is greater than the harm the defendants will suffer. Furthermore, when balancing the equities, the Court must be cognizant of the willful and continuous nature of these violations. Accordingly, a temporary injunction should issue enjoining Shawn J. Passero and Katie L. Passero, and their agents, representatives, employees, or assigns, until the parties' rights with respect to the Property have been resolved. PLAINTIFF, INLAND WETLANDS COMMISSION OF THE TOWN OF MONTVILLE By Beth Bryan Critton For Shipman & Goodwin LLP Its Attorneys 2069382v1/ s2 DOCKET NO. : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER ____, 2011 ORDER OF TEMPORARY INJUNCTION WHEREAS, the plaintiff's Application for Temporary Injunction and Order to Show Cause and Verified Complaint with a prayer for temporary injunction, dated November ____, 2011, having come before the undersigned; and WHEREAS, upon application of the plaintiff, and after a hearing at which all parties were present, it appears that a temporary injunction, as prayed for in Paragraphs 1 and 2 of the Prayer for Relief, should issue without bond; NOW, THEREFORE, IT IS HEREBY ORDERED that the defendants Shawn J. Passero of 67 Lake Drive, Oakdale, Connecticut and Katie L. Passero of 13 Honey Hill Road, Old Lyme, Connecticut shall immediately cease and desist the removal and/or disturbance of material in a regulated area and depositing material in a waterbody without a permit at the property located at 67 Lake Drive, Oakdale, Connecticut. IT IS FURTHER ORDERED that the defendants are ordered to submit an application to the Inland Wetlands Commission of Montville within 10 days of the issuance of this temporary injunction and appear before the Commission at its next regularly scheduled meeting to pursue the application and to comply with orders from the Commission regarding the restoration of the property relating to the property located at 67 Lake Drive, Oakdale, Connecticut. Dated at New London, Connecticut this _____ day of November, 2011. Judge of the Superior Court 2069382v1/ s3 DOCKET NO. : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER _____, 2011 ORDER OF PERMANENT INJUNCTION WHEREAS, the plaintiff's Application for Permanent Injunction and Order to Show Cause and the Verified Complaint with a prayer for temporary injunction, dated November _____, 2011, having come before the undersigned; and WHEREAS, upon application of the plaintiff, and after a hearing at which all parties were present, it appears that a permanent injunction, as prayed for in Paragraphs 1 and 2 of the Prayer for Relief, should issue without bond; NOW, THEREFORE, IT IS HEREBY ORDERED that the defendants Shawn J. Passero of 67 Lake Drive, Oakdale, Connecticut and Katie L. Passero of 13 Honey Hill Road, Old Lyme, Connecticut shall immediately cease and desist the removal and/or disturbance of material in a regulated area and depositing material in a waterbody without a permit at 67 Lake Drive, Oakdale, Connecticut. IT IS FURTHER ORDERED that the defendants are ordered to submit an application to the Inland Wetlands Commission of Montville within 10 days of the issuance of this temporary injunction and appear before the Commission at its next regularly scheduled meeting to pursue the application and to comply with orders from the Commission regarding the restoration of the property relating to the property located at 67 Lake Drive, Oakdale, Connecticut. Dated at New London, Connecticut this _____ day of November, 2011. Judge of the Superior Court 2069382v1/ s4 DOCKET NO. : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER ____, 2011 ORDER TO SHOW CAUSE WHEREAS, the attached Verified Complaint with prayer for temporary injunctive relief and Application for Temporary Injunction and Order to Show Cause having been presented to the Court; and WHEREAS, it appears that an order should issue directing the defendants in this action to appear before the Court and show cause why a temporary injunction should not issue; NOW, THEREFORE, IT IS HEREBY ORDERED that the defendants Shawn J. Passero of 67 Lake Drive, Oakdale, Connecticut and Katie L. Passero of 13 Honey Hill Road, Old Lyme, Connecticut be summoned to appear before the Superior Court for the Judicial District of New London at New London, 70 Huntington Street, New London, Connecticut on , 2011 at _______ a.m./p.m., Courtroom No. _____, then and there to show cause why a temporary injunction should not issue against them as prayed for in the foregoing Verified Complaint and application. IT IS FURTHER ORDERED that a copy of this Order to Show Cause, together with a copy of the Verified Complaint and supporting application, shall be served on the defendants on or before , 2011. Dated at New London, Connecticut this _____ day of November, 2011. Judge of the Superior Court 2069382v1/ s5 DOCKET NO. KNL-CV-10-6005467-S : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER ____, 2011 SUMMONS TO ANY PROPER OFFICER: By authority of the State of Connecticut, you are hereby commanded to summon the defendants Shawn J. Passero of at 67 Lake Drive, Oakdale, Connecticut and Katie L. Passero of 13 Honey Hill Road, Old Lyme, Connecticut to appear before the Superior Court at the place and time specified in the foregoing Order to Show Cause, then and there to show cause why a temporary injunction should not issue against them as prayed for in the foregoing Verified Complaint and Application, by serving upon them in the manner prescribed by law for the service of process a true and attested copy of the foregoing Writ and Verified Complaint, Application, Order, and this Summons on or before . Hereof fail not, but do service and return make. Dated at New London, Connecticut this _____ day of November, 2011. Judge of the Superior Court 2069382v1/ s6 DOCKET NO. : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER ____, 2011 VERIFIED COMPLAINT FIRST COUNT (Violation of Montville Wetland Regulations) The Town of Montville (the "Town") is a municipal corporation of the State of Connecticut. The Inland Wetlands Commission of the Town of Montville ("Commission") is the agency authorized by the Town to adopt, amend, and enforce the Inland Wetlands and Watercourses Regulations (the "Regulations") in the Town pursuant to Conn. Gen. Stat. §§ 22a-42. Colleen Bezanson is the Inland Wetlands Enforcement Officer for the Town and has been delegated authority by the Commission to enforce the Regulations under Conn. Gen. Stat. §§ 22a-42a and 22a-44, and § 13 of the Regulations. The defendants, Shawn J. Passero and Katie L. Passero, own property located at 67 Lake Drive in Oakdale (the "Property"). The defendant, Shawn J. Passero, resides or until recently resided, at the Property. The defendant, Katie L. Passero, resides at 13 Honey Hill Road, Old Lyme, Connecticut. The Regulations require that property owners obtain a permit before conducting any regulated activities on their property. 6. One or both of the defendants, or someone acting on his/her or their behalf, conducted regulated activities at the Property without a permit, including but not limited to: removal and/or disturbing material within a regulated area and depositing material within a waterbody, Oxoboxo Lake. 7. Any activity within fifty feet of a regulated wetland area requires application for and approval of a permit from the Commission. 8. On July 5, 2011, Town representatives observed that activities had been conducted on the Property, including the disturbance of material within the Town’s fifty (50) foot upland review area and the deposit of material in a waterbody, Oxoboxo Lake. 9. On July 12, 2011, the Commission issued a Cease and Desist Order (the "Order") regarding the illegally conducted regulated activities, which Order was sent to the defendants by Certified Mail but returned “Unclaimed,” and an additional letter, which included an application form, was sent to the defendants by regular first class mail. 10. Both letters described in Paragraph 9 advised the defendants that the matter would be considered by the Commission at its July 21, 2011 meeting. 11. The defendants did not respond to the letters communicating the Order and did not appear either in person or by representative at the July 21, 2011 Commission meeting. 12. A Second Notice was sent to the defendants by Certified Mail on July 22, 2011, but returned “Unclaimed,” and was also sent to the defendants by regular first class mail. These letters advised that a Cease and Desist Order had been issued and advised the defendants that the matter would be brought up at the Commission’s August 18, 2011 meeting. 13. The August 18, 2011 Commission meeting was cancelled because of a lack of a quorum. Notice of the cancellation was posted in accordance with law. 14. On August 16, 2011, a “Final Notice” was sent to the defendants by Certified Mail, which was returned “Unclaimed,” and by regular first class mail. Those letters advised that a Cease and Desist Order had been issued and that the matter would be brought up at the Commission’s September 15, 2011 meeting. 15. After the September 15, 2011 meeting was cancelled because of a lack of quorum, a Special Meeting was rescheduled for September 22, 2011. Notice of the cancellation and rescheduling was posted in accordance with law. 16. The Inland Wetlands Enforcement Officer sent the defendants a “Final Notice - Change of Meeting Date” on September 19, 2011. This letter, again sent by Certified Mail and regular first class mail, advised the defendants that a Cease and Desist Order had been issued and that the matter would be brought up at the Commission’s September 22, 2011 meeting. 17. The defendants did not respond to any of the letters communicating the Cease and Desist Orders, submitted no permit application, and did not appear either in person or by representative at the September 22, 2011 Commission meeting. 18. The defendants did not take an appeal of the Commission's decision. 19. On October 5, 2011, the Town Attorney sent letters to the defendants by regular first class mail, Certified Mail and Federal Express. The letter advised the defendants of the Cease and Desist Orders previously sent by the Town and that the Cease and Desist Orders remain in effect until the Commission affirms, revises or withdraws the Orders. The letters advised the defendants of the penalties and other consequences for disregard of the Cease and Desist Orders and gave the defendants until October 17, 2011 to submit a specific proposal to address all wetlands violations. 20. On knowledge and belief, on October 6, 2011, Shawn Passero contacted the Town Attorney, acknowledged previous receipt of notice of the Cease and Desist Orders, and said that he would contact the Wetlands Enforcement Officer and submit a wetlands permit application. 21. On or about __________, Shawn Passero contacted the wetlands enforcement officer by telephone and requested a wetlands permit application. 22. On October 11, 2011, the Wetlands Enforcement Officer, at Shawn Passero’s request, sent a letter and application to the Passeros. 23. Shortly after the Wetlands Enforcement Officer sent the letter and application described in Paragraph 21, Mr. Passero called the Town and advised the Zoning Officer that the Town should send him no more letters. 24. The defendants have not submitted any application to, or appeared before, the Commission, have not stabilized the area of disturbance on the Property, and have not restored the Property. 25. The Cease and Desist Orders remain in effect and the violations of the Inland Wetlands and Watercourses Act and Regulations continue. WHEREFORE, plaintiff claims: 1. A temporary injunction ordering the defendants immediately to cease and desist any unauthorized activities on the Property located at 67 Lake Drive, Oakdale, Connecticut, including but not limited to removal or disturbance of material within a regulated area and depositing material within a waterbody, Oxoboxo Lake, without a permit. 2. A permanent injunction enjoining the defendants from engaging in any authorized activities on the property located at 67 Lake Drive, Oakdale, Connecticut, including removal or disturbance of material within a regulated area and depositing material within a waterbody, Oxoboxo Lake, without a permit. 3. A permanent injunction ordering the defendants to apply for a permit for the unauthorized activities that have been previously conducted on the Property located at 67 Lake Drive, Oakdale, Connecticut. 4. An order directing the defendants to restore the Property located at 67 Lake Drive, Oakdale, Connecticut and to remediate any harm to Oxoboxo Lake and the upland review area relating to their unauthorized activities, as required by the Commission. 5. A fine in the amount of $100 per day for each day that defendants violate the Regulations from ______________ (the date of the final show cause hearing) through the date of final judgment, pursuant to Conn. Gen. Stat. § 22a-44. 6. A civil penalty in the amount of $2,500 for defendants' failure to comply with the Orders issued on July 12, 2011, July 22, 2011, August 16, 2011, and September 19, 2011, pursuant to Conn. Gen. Stat. § 22a- 44. 7. Plaintiff's costs, together with reasonable attorneys' fees, pursuant to Conn. Gen. Stat. § 22a-44. 8. Such other legal or equitable relief deemed by the Court to be appropriate. PLAINTIFF, INLAND WETLANDS COMMISSION OF THE TOWN OF MONTVILLE By Beth Bryan Critton For Shipman & Goodwin LLP Its Attorneys Please enter the appearance of Shipman & Goodwin LLP for plaintiff Inland Wetlands Commission of the Town of Montville. Shipman & Goodwin LLP 2069382v1/ s7 DOCKET NO. : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER ____, 2011 STATEMENT OF AMOUNT IN DEMAND The above-captioned action seeks other relief in lieu of or in addition to money or fines. PLAINTIFF, INLAND WETLANDS COMMISSION OF THE TOWN OF MONTVILLE By Beth Bryan Critton For Shipman & Goodwin LLP Its Attorneys 2069382v1/ s8 VERIFICATION I, Colleen Bezanson, being duly sworn, hereby affirms that I have read the contents of the attached Verified Complaint, am familiar with the contents therein, and I certify that the contents of the Verified Complaint are true and accurate to the best of my knowledge, information, and belief. COLLEEN BEZANSON Planner II Town of Montville Subscribed and sworn to before me this _____ day of November, 2011. Notary Public My Commission Expires: 2069382v1/ s9 DOCKET NO. : SUPERIOR COURT : INLAND WETLANDS COMMISSION : JUDICIAL DISTRICT OF THE TOWN OF MONTVILLE : OF NEW LONDON : AT NEW LONDON v. : : SHAWN J. PASSERO and : KATIE L. PASSERO : NOVEMBER ____, 2011 CERTIFICATION INTO COURT The accompanying Verified Complaint, Application for Temporary Injunction and for Order to Show Cause, Order to Show Cause, Summons, and Order of Temporary Injunction having been brought to me, a Judge of the Superior Court, the above-captioned action and proceedings thereon had before me are hereby certified to the Court. Dated at New London, Connecticut this _____ day of November, 2011. Judge of the Superior Court 2069382v1/ s10 2 2 Draft: 11/29/11 7 Draft: 11/29/11 2 Draft: 11/29/11 2 Draft: 11/29/11 2 Draft: 11/29/11 Draft: 11/29/11 2 Draft: 11/29/11 Draft: 11/29/11 4 Draft: 11/29/11 .DOC 206938~1.DOC 2069382_1.DOC application/msword EnUs Colleen, Attached, for your review and comment, are drafts of the injunction pleadings. I particularly need your careful review of your Affidavit. If there is anything that is in any way inaccurate, please let me know. There is a blank in Paragraph 4 of the Affidavit that needs filling in. Also, I realize that I have drafts of the letter that you sent to the Passeros on or about October 11, 2011, but I do not have a copy of the actual letter and need one for my file. If the date you sent it is a date other than the one on the letter, please let me know the date of mailing. Have you had a chance to drive by the property in the last few days? I will separately send you a recent decision involving some similar issues in Branford. It gives you an idea of the type of testimony that you will need to provide if there is a hearing on the temporary injunction. You will note that Branford began assessing fines even before it filed the injunction action, which is something that the Commission might consider. Thank you for your help. Best, Beth Converted from text/plain format Beth Bryan Critton Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103-1919 Phone (Direct): (860) 251-5662 Fax: (860) 251-5318 THIS MESSAGE IS ONLY FOR THE USE OF THE ADDRESSEE AND MAY CONTAIN CONFIDENTIAL AND PRIVILEGED INFORMATION. Any dissemination or copying of this communication other than by the intended recipient(s) is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and destroy all copies of this communication. Thank you. From: McConnell, Germaine R. Sent: Tuesday, November 29, 2011 4:41 PM To: Critton, Beth Subject: Montville v. Passero