Long Involved in Bitter Dispute with Frogtown Road Nursery, Neighbors Now Point Fingers at the Town

Three contiguous homeowners on Frogtown Road, involved for months in a bitter land use dispute with the commercial nursery next door, now are saying in a formal letter to the town that municipal officials have failed to address adequately their several concerns.

The owners of 313, 321 and 323 Frogtown Road say in an Aug. 11 letter that “New Canaan has failed to take action on Twin Ponds Nursery (also known as The Frogtown Nurseries and formerly known as Kimberley Farm Nurseries) located at 259 Frogtown Road.”

Specifically, the homeowners say, town officials have found no resolution to their complaints about the “nonconforming use” of their residential properties, lodged since last fall.

The neighbors complaints include claims that: the nursery had been storing harmful chemicals including some containing hydrochloric acid; there’s no building permit of Certificate of Occupancy on file anywhere for some structures on nursery premises; no permit exists for a dumpster on the commercial property; there are potential wetlands violations; an irrigation system and deer fence encroach on their residential properties and represent nonconforming uses.

The formal letter is the latest in a dispute involving neighbors whose properties ring the western end of the nursery. Court documents show that the dispute goes back at least one year and centers, in part, on the question of whether the nursery had made “continuous and uninterrupted” use of areas near the property line for a statutory period of 15 years that would then give them certain rights to it, such as installing deer fencing.

One year ago, according to state Superior Court records filed on behalf of Twin Ponds LLC, the three sets of neighbors to the nursery including John and Lovisa Baney (owners of their property since 1984, according to the complaint), Eileen Kennedy (owner of her property since 2007 though it’s been in her family since 1991) and Todd and Margaret Challe (owners of their property since 2009) served and recorded a notice of landowners’ rights against the Frogtown Road property, disputing the business’s use of a combined 10,300-square-foot parcel allegedly encroaching on their residential lots.

In December, Twin Ponds LLC—owner of the property, with a tenant nursery (recently Geiger’s, which left)—sued those three sets of neighbors, saying the business had continuously used and acquired title to the property, and seeking temporary injunctions that would prevent the homeowners from interfering with fencing or sprinkler systems on them, as well as from constructing barriers that would impede access to equipment or stock or the areas in general. (Twin Ponds LLC in its complaint said the property has been used as a nursery for at least 40 years.)

In the complaint, attorney John Ribas of Trumbull-based Goldman Gruder & Woods, LLC said Baney, “on two separate occasions, has destroyed the fencing and irrigation system and sprinklers which surround the pond and area that allegedly encroaches upon” his property.

“The destruction of said fence and irrigation system has enabled deer and other wildlife to enter the property and destroy the inventory,” the complaint said. “Baney’s actions unreasonably interfere with the plaintiff’s exclusive right to use” an approximately 1,800-square-foot parcel. Saying that Twin Ponds feared two other neighbors would do the same, the complaint seeks temporary injunctions against them.

Ribas could not immediately be reached for comment.

In the lawsuit, Twin Ponds seeks monetary damages, costs, injunctive relief and a judgment determining the parties’ rights with respect to the parcels in question that allegedly are encroaching on the residential properties.

The defendants have answered the ongoing lawsuit, denying the substantial claims against them.

In a counterclaim filed in December, Baney—owner of his home on Frogtown Road since 1984—asserts that Twin Ponds “wrongfully entered upon a portion of [his] land and has interfered with the defendants’ possession and control and still keeps them out of possession depriving them of use of a portion of the land and its value.” He is seeking a judgment of possession of the premises, removal of Twin Ponds’ personal property from the area and “removal of a deer fence also erected by the plaintiff on portions of the defendants’ property.”

Another neighbor’s counterclaim refers to “intentional intrusions and invasions” of residential property, saying Twin Ponds and their agents “continue their activities thereby causing continued harm.” That neighbors is seeking monetary damages and whatever relief is needed remove the nursery’s materials and restore the property.

In January, Twin Ponds in a motion for contempt filing accused the Baneys of once again destroying the deer fence despite an order under which “the parties agreed to maintain the status quo” in the disputed areas.

In May, two sets of neighbors filed motions for contempt, saying in one case that Twin Ponds “have had additional fencing installed” and “are now storing vehicles belonging to parties other than the plaintiff’s on the property.”

“Adding additional fencing directly violates the court’s direction to maintain the status quo, and at no time did the plaintiffs ever disclose to the court about or seek permission to store third party vehicles on the property,” the motion said.

Another motion for contempt claimed that Twin Ponds “continue to utilize the disputed parcel in a manner that is inconsistent with its prior use for all periods of time” since the homeowner acquired the property eight years ago.

“Plaintiffs’ inconsistent uses include, but are not limited to, storing palates of nursery equipment and stone in the disputed parcel in an area immediately next to the mesh fence, and allowing a second large pile of dirt and/or debris to be stored on the disputed parcel. Plaintiffs have also reinforced the existing mesh fence with a second layer of mesh fence. Plaintiffs also installed cameras on the disputed parcel facing [the homeowners’] property, in a direction where [their] children play on a trampoline.”

In a decision filed Aug. 15 that addresses part of the lawsuit, Judge Edward Karazin Jr. denied the defendants’ motion for summary judgment with respect to one count of the lawsuit. Specifically, Karazin finds fault with the defendants’ argument that the disputed parcels could not have been continuously occupied for 15 years because one of the nursery’s past owners had filed for bankruptcy.

A hearing on the lawsuit is scheduled for Oct. 4.

In their letter to the town, the neighbors are seeking specific information on enforcement action taken by New Canaan’s zoning enforcement officer with the nursery’s owner, as well as subsequent compliance. They’re also seeking responses to the seven complaints outlined in their letter and an in-person meeting with municipal officials that includes Town Attorney Ira Bloom.