Department of Transportation v. Pacitti

682 A.2d 136, 43 Conn. App. 52, 1996 Conn. App. LEXIS 457
CourtConnecticut Appellate Court
DecidedSeptember 10, 1996
Docket14471
StatusPublished
Cited by8 cases

This text of 682 A.2d 136 (Department of Transportation v. Pacitti) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Transportation v. Pacitti, 682 A.2d 136, 43 Conn. App. 52, 1996 Conn. App. LEXIS 457 (Colo. Ct. App. 1996).

Opinion

FOTI, J.

The plaintiff1 appeals from the judgment rendered denying its application for temporary and permanent injunctions2 against the defendants Joseph Pacitti and Taco Bell Corporation (Taco Bell). The plaintiff claims that the trial court improperly (1) denied its request for the issuance of an injunction and (2) refused to admit certain evidence. We affirm the judgment of the trial court.

The underlying facts as found by the trial court are not substantially in dispute. Pacitti is the owner of a development called the Vernon Park Plaza in Vernon; Taco Bell operates a restaurant in the development. [54]*54The original plan by Pacitti was to construct a 120,000 square foot retail shopping center providing 427 parking spaces. The proposed development would have included a large supermarket and was expected to generate up to 1289 car trips either entering or leaving the plaza during each of the peak hours of operation.

General Statutes § 14-311 (a) provides in relevant part: “No person . . . shall build, expand, establish or operate any . . . development generating large volumes of traffic . . . until such person or agency has procured from the State Traffic Commission a certificate that the operation [of the development] will not imperil the safety of the public.” Section 14-312-1 (a) of the Regulations of Connecticut State Agencies provides that a development “providing two-hundred or more parking spaces, or a gross floor area of 100,000 square feet or more” generates large volumes of traffic.

Since the proposed development would have generated large volumes of traffic, according to these definitions, on July 23, 1989, Pacitti applied to the traffic commission for a certificate of operation. The traffic commission referred the application to the bureau of engineering and highway operation of the department of transportation bureau, which conducted a traffic study of the proposed development to determine its impact on the flow of traffic. An engineer for the bureau prepared a report that recommended that the proposed development be permitted to operate if eleven conditions concerning roadway improvements were met. The police chief of the town of Vernon concurred with the bureau’s recommendation, which concurrence was noted on the report. The report was based on the design, size, and expected traffic generation of the development as proposed.

On September 19,1989, certificate no. 973 was issued to Pacitti and on September 25,1989, he was so notified [55]*55by the executive director of the traffic commission. The certificate provided among other things that no person would operate the development or any portion thereof prior to the completion of all the conditions unless permission had been requested and received from the traffic commission.

At some point in the fall of 1990, Taco Bell began constructing its restaurant, and on November 14, 1990, the bureau informed the executive director of the traffic commission that Taco Bell should not be issued a certificate of occupancy unless all eleven conditions in the original certificate were completed or the traffic commission granted a revised partial opening.

Pacitti’s application for a certificate of operation listed James Bubaris, P.E., as an authorized representative “to be contacted during review of application.”

On November 21, 1990, Bubaris contacted the traffic commission requesting that Taco Bell be allowed to open without complying with the conditions set forth in the original certificate of operation. Bubaris had conducted a study and concluded that the existing geometry and phasing of the intersection was sufficient for the operation of Taco Bell, Shawmut Bank3 and a proposed department of motor vehicles facility located across the street from the development. In the letter, a commitment was made to do certain roadwork in front of Taco Bell in the spring of 1991 if the traffic commission would permit Taco Bell to open in December.

The bureau thereupon recommended to the traffic commission that Taco Bell be permitted to operate pursuant to an amended certificate and without full compliance with the requirements of the original certificate if two conditions were met. The conditions were that a [56]*56traffic sign be installed and that no more than 12,200 square feet of building space be occupied until all of the conditions of the original certificate had been met. The Vernon police chief again concurred with the bureau recommendation.

On December 18, 1990, the traffic commission adopted the bureau recommendation and approved an amended certificate that permitted the opening of Taco Bell. Pacitti was notified on the same day. Pacitti complied with the conditions set forth in the amended certificate but the roadwork referred to in the Bubaris letter was never done. The development continues to consist solely of Taco Bell and a vacant Shawmut Bank because the inland wetlands commission of the town of Vernon refused to issue the permits necessary for an expansion of the development. Apart from the two uses mentioned, no other uses are made of the rest of the property.

On December 18, 1992, the director of the traffic commission wrote Pacitti to inform him that the traffic commission had voted to order him to cease and desist operating those portions of the development that were then doing business in violation of the original certificate. The traffic commission did not send a copy of the order to Taco Bell headquarters in California but rather sent a copy to James Santos, the Taco Bell employee responsible for obtaining the necessary permits for the certificate of occupancy. Santos denied having received a copy of the order and Taco Bell did not have a copy of the order in its files at corporate headquarters in California. Santos was the construction manager for Taco Bell in December, 1990, but had no responsibility for its operation in 1992. Santos testified that he was aware that the certificate of occupancy was in jeopardy in November, 1990, and he did receive a copy of the Bubaris letter to the traffic commission. Santos reported none of this to his superiors because he was assured by Pacitti that the work necessary to comply [57]*57with the original certificate would be done. Subsequent to the issuance of the certificate, Santos became aware of the fact that the work that was supposed to be done in the spring of 1991 had not been done.

The traffic commission sought, in addition to a temporary and permanent injunction restraining Pacitti from operating Vernon Park Plaza, the penalties as provided by General Statutes § 14-314,4 and such other relief as the court deemed just and proper.

I

Following a hearing, the trial court, in exercising its discretion, declined to issue an injunction, concluding that sufficient evidence had not been presented to demonstrate that compliance with the conditions of the original certificate would correct any traffic problems that might exist.

The decision to grant or deny an injunction is discretionary and will not be reversed absent a clear abuse of discretion. Crabtree v. Coyle, 19 Conn. App. 208, 211, 561 A.2d 455 (1989). In deciding, the trial court must consider the equities, including the gravity and wilfulness of the violation, as well as the potential harm. Gelinas v. West Hartford, 225 Conn.

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Bluebook (online)
682 A.2d 136, 43 Conn. App. 52, 1996 Conn. App. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-pacitti-connappct-1996.