McCarthy v. Cadlerock Properties Joint Venture, L.P.
30 A.3d 753
Conn. App. Ct.2011Background
- Cadlerock Properties Joint Venture, L.P. appeals from a judgment ordering permanent injunction and a $282,000 civil penalty for noncompliance with a 1997 DEP pollution abatement order SRD-088.
- The order applied to the entire 335-acre property in Willington and Ashford, and the hearing upheld the order on review through 1999.
- Plaintiff Gina McCarthy, as DEP commissioner, issued the order and later enforcement proceeded in 2007 after years of noncompliance.
- The court found the defendant’s finances were interwoven with Cadlerock, Inc. and The Cadle Company, under common control by Cadle, making the “size of the business involved” broader than the defendant alone.
- Penalties were authorized under General Statutes § 22a-438(a) and § 22a-226(a); the court assessed the amount based on multiple statutory factors, including the economic benefit of the violation and the size of the business.
- The defendant argued the court improperly considered nonparties’ assets and resources and failed to properly assess its ability to pay, raising abuse-of-discretion concerns under the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by treating interrelated entities as the defendant’s size of business. | McCarthy contends the size factor encompasses the broader enterprise. | Cadlerock argues only the defendant’s assets should count. | No abuse; interrelated entities may be treated as the size of the business. |
| Whether the court properly considered defendant’s ability to pay. | McCarthy contends ability to pay informs penalties. | Cadlerock asserts lack of adequate record on finances. | Cannot review ability to pay due to an insufficient appellate record. |
Key Cases Cited
- Keeney v. L & S Construction, 226 Conn. 205 (1993) (factors guiding civil-penalty determinations under § 22a-438; includes size of business and economic impact)
- Carothers v. Capozziello, 215 Conn. 82 (1990) (enumerates factors for penalties under § 22a-226 and § 22a-438)
- Keeney v. Old Saybrook, 237 Conn. 135 (1996) (continued relevance of penalty factors; persistent violator status considered)
- Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245 (2003) (abuse-of-discretion standard; deference to trial court)
- Rocque v. Light Sources, Inc., 275 Conn. 420 (2005) (penalty framework and review principles)
- Calo-Turner v. Turner, 83 Conn.App. 53 (2004) (record requirement for appellate review; need transcript)
- Rossman v. Morasco, 115 Conn.App. 234 (2009) (cannot award against nonparty; limits on liability against nonparties)