131 Conn. App. 178
Conn. App. Ct.2011Background
- Plaintiff and wife own 36 Pine Road Colchester, used for sand/gravel excavation, earth materials processing, recycling, and manure storage.
- May 8, 2006, town issued a cease and desist order directing cessation of these activities until a permit was obtained.
- June 1, 2006, plaintiff appealed; August 15, 2006, defendant upheld the cease and desist order after a hearing.
- November 1, 2006, plaintiff moved for stay of enforcement under § 8-8(h); proceedings continued, and a stipulation was later entered in February–April 2007 requiring filings by April 23, 2007 and allowing interim activity.
- June 22, 2007, plaintiff and wife filed a special exception application; September 13, 2007, the planning and zoning commission denied the application.
- February 27, 2008, defendant moved for contempt for failure to file applications by the deadline; the court granted contempt, imposed $1,000/day fines, but abated them if filings occurred by June 23, 2007; plaintiff later filed the required applications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second contempt motion was proper | Przekopski contends the contempt finding was improper due to preexisting nonconforming uses and allowed-by-right uses preserved by CT law and lack of termination obligation if denied. | Colchester contends the stipulation waived those claims and the court properly found contempt for unpermitted activities continuing after the stipulation. | Second contempt motion upheld; waiver due to stipulation. |
| Whether the March 19, 2008 order was violated | Plaintiff argues he could not comply or that economic factors do not prove violation. | Defendant asserts ongoing nonpermitted activities after March 26, 2008, and that circumstances do not excuse noncompliance. | Court did not abuse discretion; plaintiff violated the order. |
| Whether sanctions and attorney’s fees were properly awarded | Plaintiff claims he was not afforded a meaningful opportunity to respond to sanctions motion. | Defendant contends sanctions were appropriate for frivolous mandamus action and other conduct. | Abuse of discretion; reversal of sanctions and fees; remand to vacate related findings. |
Key Cases Cited
- Bank of Boston Connecticut v. DeGroff, 31 Conn. App. 253 (1993) (stipulated judgments are conclusive contracts resolving disputes)
- Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555 (1983) (preservation of issues in settlements implied by terms unless expressly reserved)
- Lee v. Tufveson, 6 Conn. App. 301 (1986) (stipulated judgments resolve contested issues absent express reservation)
- In re Leah S., 284 Conn. 685 (2007) (abuse of discretion standard in contempt proceedings; wilful noncompliance)
- Kennedy v. Kennedy, 114 Conn. App. 143 (2009) (contempt requires showing plaintiff was unable to comply through no fault of his own)
- Fattibene v. Kealey, 18 Conn. App. 344 (1989) (proper hearing required before imposing sanctions or attorney’s fees)
- Berzins v. Berzins, 122 Conn. App. 674 (2010) (review of sanctions under abuse of discretion standard)
- Blum v. Blum, 109 Conn. App. 316 (2008) (trial court credibility determinations are for the court to resolve)