ARTHUR PETRUCELLI v. CITY OF MERIDEN
(AC 39630)
Appellate Court of Connecticut
Argued November 14, 2019—officially released April 14, 2020
Prescott, Moll and Flynn, Js.
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The petitioner appealed to the Superior Court from the decision of the citation hearing officer for the respondent city upholding a citation assessed against the petitioner for violating the respondent‘s anti-blight ordinance. The court rejected the petitioner‘s appeal, which included claims that, inter alia, the anti-blight ordinance was unconstitutional and that there was insufficient evidence to find him noncompliant with the ordinance. On appeal to this court, the petitioner claimed that the trial court abused its discretion in precluding the testimony of two of his witnesses, Y and K, and erroneously concluded that the respondent had not violated his due process rights, that the anti-blight ordinance was not unconstitutionally vague as applied to him, and that there was sufficient evidence establishing his noncompliance with the anti-blight ordinance. Held:
- The trial court did not abuse its discretion in precluding Y‘s proffered testimony and, even if the court abused its discretion in precluding K‘s proffered testimony, the petitioner failed to demonstrate that the error was harmful; Y was called to testify out of order and K‘s testimony would not have operated to discredit the testimony of M, the respondent‘s housing inspector who issued the citation, because M did not testify that the petitioner told him he could enter the property alone at any time and, even if he had testified to this, K‘s testimony on this issue would have been cumulative.
- The trial court did not err in concluding that the respondent had not violated the petitioner‘s due process rights; the record reflected that the petitioner received a written, detailed notice of the blight violation, the respondent conducted hearings regarding the blight violation at the petitioner‘s request, granted the petitioner multiple extensions of time to address the violations, and met with the petitioner at his property prior to the assessment being imposed.
- The petitioner could not prevail on his claim that the anti-blight ordinance was unconstitutionally vague as applied to him; the evidence relied on by the petitioner did not establish that the respondent enforced the anti-blight ordinance in an arbitrary and discriminatory manner.
- The trial court did not err in determining that there was sufficient evidence demonstrating that the property was blighted; photographs submitted at the hearing, along with the testimony of M, established that there was garbage, trash, litter, rubbish or debris on the property in violation of the anti-blight ordinance.
Procedural History
Petition to reopen a citation assessment issued by the respondent, brought to the Superior Court in the judicial district of New Haven, geographical area number seven, where the court, Cronan, J., rendered judgment denying the petition, from which the petitioner appealed to this court. Affirmed.
Jeffrey D. Brownstein, for the appellant (petitioner).
Stephanie Dellolio, city attorney, with whom, on the brief, was Deborah Leigh Moore, former city attorney, for the appellee (respondent).
MOLL, J. The petitioner, Arthur Petrucelli, appeals from the judgment of the trial court rendered in favor of the respondent, the city of Meriden (city), following a de novo hearing held on his petition to reopen an assessment entered against him by a citation hearing officer for violation of the city‘s anti-blight ordinance. On appeal, the petitioner claims that the court (1) abused its discretion by precluding, in whole or in part, two of his witnesses from testifying, (2) erroneously concluded that the city had not violated his due process rights, (3) erroneously concluded that the city‘s anti-blight ordinance was not unconstitutionally vague as applied to him, and (4) erroneously concluded that there was sufficient evidence establishing his noncompliance with the anti-blight ordinance. We affirm the judgment of the trial court.
The following facts are relevant to our resolution of this appeal. In 2003, pursuant to
The trial court set forth the following relevant procedural history in its corrected memorandum of decision dated October 10, 2017.3 “On March 11, 2015, the City of Meriden Department of Development and Enforcement sent a letter to the [petitioner] concerning the condition of his property located at 48 Bradley Avenue in Meriden
“An inspection of the property was scheduled for June 22, 2015, but the [petitioner] sought an additional extension and one was granted by the board until July 22, 2015. When no apparent progress was made by the July 22 date, the [petitioner] was issued a citation for a violation of the anti-blight ordinance on July 30, 2015. The [petitioner] requested a hearing before a citation hearing officer. At a hearing held on September 28, 2015, the [petitioner] was granted an additional thirty day extension to address compliance issues. On October 26, [2015],4 another hearing was held by the citation hearing officer where it was reported that the anti-blight issues were not addressed by the [petitioner]. The hearing officer assessed a fine of $500 for failure to comply with the ordinance which could be enhanced by a fine of $100 a day if compliance was not forthcoming.” (Citation omitted; footnote added.)
In November, 2015, pursuant to
The trial court held a two day de novo hearing on the petition in March and April, 2016. On September 2, 2016, the court rendered judgment in favor of the city. In its October 10, 2017 corrected memorandum of decision, after dismissing each of the petitioner‘s claims set forth in the petition, the court stated that it “rejects the
I
The petitioner first claims that the trial court abused its discretion during the de novo hearing by precluding the proffered testimonies of John Yacovino, a deputy fire marshal of the city, and Thomas Kilroy, a city housing inspector. This claim is unavailing.
“It is well established that [t]he trial court‘s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court‘s discretion. . . . [E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [petitioner] of substantial prejudice or injustice. . . . [I]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court‘s ruling . . . .” (Internal quotation marks omitted.) Burns v. RBS Securities, Inc., 151 Conn. App. 451, 461–62, 96 A.3d 566, cert. denied, 314 Conn. 920, 100 A.3d 851 (2014).
The following additional facts are relevant to our resolution of this claim. During the first day of the de novo hearing, the petitioner called Yacovino as his first witness. Immediately after the clerk had sworn in Yacovino, the city‘s counsel objected, arguing that Yacovino‘s impending testimony would be irrelevant with regard to whether the petitioner had violated the anti-blight ordinance. The court stated that it was uncertain as to the purpose of Yacovino‘s testimony, as the petition to reopen the assessment did not contain a statement of facts. The petitioner‘s counsel responded that Peter Miller, the city housing inspector who had issued the July 30, 2015 citation to the petitioner, had testified during the October 26, 2015 citation hearing that, without an administrative warrant and without the petitioner being present, he had entered and inspected the property on the day of the hearing. The petitioner‘s counsel proffered that Yacovino would testify that, in his capacity as a city fire marshal, he had interacted with the petitioner on numerous occasions over the course of ten to fifteen years regarding fire code violations and that the petitioner had never permitted him to enter the petitioner‘s property without the petitioner‘s express authorization and without the petitioner being present. In reply, the city‘s counsel argued, inter alia, that there were other witnesses available who could offer testimony regarding whether Miller‘s entry onto the property was permissible and that Yacovino‘s proposed testimony was not germane to the present action. The petitioner‘s counsel retorted that the issue was not whether the petitioner had permitted Miller to enter the property, but whether Miller, when called to testify,
Following argument, the court determined that the petitioner had called Yacovino as a witness out of order, stating: “I have the petition. I don‘t know what the issues are, at this point in time. And you‘re bringing [Yacovino in] and asking him questions about his interaction, with [the petitioner], over the years. It‘s – it‘s entirely out of order.” On that basis, the court sustained the city‘s objection and excused Yacovino.
The petitioner next called Miller as a witness. Miller testified in relevant part as follows. During the September 28, 2015 citation hearing, the citation hearing officer granted the petitioner a thirty day extension of time to bring the property into compliance with the anti-blight ordinance. That same day, at the request of the petitioner and his counsel, Miller and a few other individuals met with the petitioner and his counsel on the property and conducted a “general tour” of the property. While on the property, a verbal agreement was reached pursuant to which the city was permitted to monitor the property periodically during the thirty day period. Miller interpreted the agreement to mean that he had authorization to enter the property at any time during the thirty day period regardless of whether the petitioner was present; however, Miller admitted that the petitioner had never told him expressly that he was permitted to enter the property unaccompanied at will. Thereafter, on October 26, 2015, before the start of the citation hearing held that day, Miller entered and inspected the property. The petitioner was not present during Miller‘s inspection.
After Miller finished testifying, the petitioner called Kilroy as a witness. At the outset, Kilroy testified that he had cited the petitioner for violating the anti-blight ordinance with respect to a different property in Meriden owned by the petitioner. The city‘s counsel objected, arguing that Kilroy‘s testimony regarding any anti-blight citation issued with respect to other property owned by the petitioner was irrelevant. The petitioner‘s counsel proffered that he intended to elicit testimony from Kilroy that, during Kilroy‘s past interactions with the petitioner, the petitioner had never allowed Kilroy to enter his property unattended. According to the petitioner‘s counsel, Kilroy‘s testimony was relevant because it would discredit Miller‘s purported testimony that the petitioner had given him permission to enter the property at any time, regardless of whether the petitioner was present, during the thirty day period following the September 28, 2015 citation hearing. The court stated that it could take judicial notice that the petitioner and the city “have been fighting with each other, probably, longer than we have been around” and “do not see eye to eye,” but it agreed with the city‘s counsel that testimony from Kilroy regarding his encounters with the petitioner that were unrelated to
The petitioner next called John Rutka, an acquaintance of the petitioner, to testify. Rutka testified that he was present at the September 28, 2015 meeting on the property and that he did not hear the petitioner agree to authorize Miller to enter the property unaccompanied at any time during the thirty day period following the September 28, 2015 citation hearing. The petitioner‘s counsel then called the petitioner as a witness. The petitioner testified in relevant part that he had never permitted Miller or any other city official to enter the property unless his counsel was present and the purpose of the entry was to discuss issues regarding the property.
On appeal, the petitioner claims that the court abused its discretion by precluding the proffered testimonies of Yacovino and Kilroy. The petitioner asserts that Yacovino and Kilroy would have testified that he had never permitted either of them, respectively, to enter his property without either him or his counsel present. The petitioner posits that the excluded evidence would have undermined the credibility of Miller, who, the petitioner contends, had testified that the petitioner had given him permission to enter the property, regardless of whether the petitioner was present, during the thirty day period following the September 28, 2015 citation hearing. According to the petitioner, Miller was a key witness whose testimony was critical to the court‘s determination that he had violated the anti-blight ordinance. We address the court‘s rulings as to Yacovino and Kilroy in turn.
A
We first consider the court‘s decision precluding Yacovino‘s proffered testimony. In precluding that testimony, the court determined that the petitioner had called Yacovino as a witness out of order. According to the petitioner, the purpose of Yacovino‘s proffered testimony was to attack Miller‘s credibility; however, Miller had not yet been called to testify. Precluding Yacovino‘s proffered testimony was reasonable given that the evidence that the proffered testimony was intended to discredit, namely, Miller‘s testimony, had not yet been admitted. The petitioner makes no argument that the court‘s determination that Yacovino was called out of order was improper. Thus, we conclude that the court did not abuse its discretion by precluding Yacovino‘s proffered testimony.
We next turn to the court‘s ruling precluding Kilroy‘s proffered testimony. Unlike Yacovino, the petitioner called Kilroy as a witness after Miller had testified. The court determined that Kilroy‘s proffered testimony was irrelevant because it had no nexus to the property, but rather concerned Kilroy‘s interactions with the petitioner relating to a different property owned by the petitioner. We conclude that, even if the court‘s preclusion of Kilroy‘s proffered testimony constituted an abuse of discretion, the petitioner has failed to demonstrate that the error was harmful.
“Even when a trial court‘s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. . . . In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. . . . Harmful error occurs in a civil action when the ruling would likely affect the result. . . . It is the [petitioner‘s] burden to show harmful error.” (Internal quotation marks omitted.) Suntech of Connecticut, Inc. v. Lawrence Brunoli, Inc., 173 Conn. App. 321, 347, 164 A.3d 36 (2017), appeal dismissed, 330 Conn. 342, 193 A.3d 1208 (2018). “In those instances wherein a party claims that the trial court improperly excluded testimony, we undertake a review of the relationship of the excluded evidence to the central issues in the case and whether that evidence would have been merely cumulative of admitted testimony.” (Internal quotation marks omitted.) Doyle v. Kamm, 133 Conn. App. 25, 35, 35 A.3d 308 (2012).
Here, the petitioner sought to introduce Kilroy‘s proffered testimony to discredit Miller, who purportedly testified that the petitioner had permitted him to enter the property at any time, regardless of whether the petitioner was present, during the thirty day period following the September 28, 2015 citation hearing. Contrary to the petitioner‘s belief, however, Miller testified that the petitioner did not tell him expressly that he could enter the property alone at any time; instead, Miller testified that he interpreted the verbal agreement reached by the parties during the September 28, 2015 meeting on the property, permitting the city to monitor the property periodically during the thirty day period, as authorizing him to have such open access to the property. Thus, Kilroy‘s proffered testimony would not have operated to discredit Miller. Additionally, even if Miller had testified that the petitioner had given him express permission to enter the property unaccompanied at will, both Rutka and the petitioner testified that the petitioner had never given Miller such authorization. As a result, at most, Kilroy‘s proffered testimony would have been cumulative. For these reasons, even if the court had abused its discretion by precluding Kilroy‘s proffered testimony on the relevancy ground cited by
In sum, we conclude that (1) the court did not abuse its discretion by precluding Yacovino‘s proffered testimony, and (2) assuming that the court abused its discretion by precluding Kilroy‘s proffered testimony, the petitioner has failed to demonstrate that the court‘s ruling was harmful. Accordingly, the petitioner‘s claim challenging the court‘s preclusion of the proffered testimonies of Yacovino and Kilroy fails.
II
We next turn to the petitioner‘s claim that the trial court improperly concluded that the city did not deprive him of his due process rights.8 Specifically, the petitioner asserts that the city failed to provide him with adequate notice and process in enforcing the anti-blight ordinance against him. We are not persuaded.
The petitioner‘s claim implicates his right to procedural due process. “[F]or more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. . . . It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner. . . . [T]hese principles require that a [party] have . . . an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” (Internal quotation marks omitted.) Merkel v. Hill, 189 Conn. App. 779, 786–87, 207 A.3d 1115 (2019). “Whether a party was deprived of his due process rights is a question of law to which appellate courts grant plenary review.” McFarline v. Mickens, 177 Conn. App. 83, 100, 173 A.3d 417 (2017), cert. denied, 327 Conn. 997, 176 A.3d 557 (2018).
In rejecting the petitioner‘s claim that the city had violated his due process rights, the court stated: “In this matter, the record reflects that the [petitioner] was first sent a notice of order informing him of possible blight violations on March 31, 2015.9 On April [8], 2015, the [petitioner] requested a hearing before the [board] and was given a hearing on May 14, 2015. The [petitioner] was further granted a thirty day extension and a second thirty day extension [to come into compliance with the anti-blight ordinance]. After being issued a citation for noncompliance, the [petitioner] requested a hearing [before a citation hearing officer] and was given one. The [petitioner] was then granted an additional thirty day extension before the imposition of penalties. The court finds that there is no constitutional or legal basis on the part of the [petitioner] to claim a violation of his due process rights.” (Footnote added.)
We agree with the court and conclude that the peti-
III
We now turn to the petitioner‘s claims that the court improperly concluded that (1) the anti-blight ordinance was not unconstitutionally vague as applied to him,11 and (2) there was sufficient evidence demonstrating that he had violated the anti-blight ordinance. We are not persuaded.
The following additional facts are relevant to our resolution of these claims. The March 11, 2015 letter that the city sent to the petitioner, inter alia, notified the petitioner that the property was in violation of § 159-2 of the anti-blight ordinance because the conditions described in parts B, F, G, H, I, N, and Q of the definition of “blight” set forth in § 159-3 of the anti-blight ordinance were present on the property.12 The trial court concluded that there was no evidence that the anti-blight ordinance was unconstitutional as applied to the petitioner or that the city had enforced the ordinance arbitrarily against the petitioner. Additionally, the court concluded that there was sufficient evidence establishing that the petitioner had violated the anti-blight ordinance and that “[n]o ‘law abiding taxpayer’ should have to own a property in proximity to the conditions created and maintained by the [petitioner].”
As a preliminary matter, we discuss the scope of the petitioner‘s claims that we are reviewing. From what we can distill from his appellate briefs, the petitioner asserts that (1) the anti-blight ordinance, in defining “blight” in general, was impermissibly vague as applied to him because “different city inspectors, different members of a city board and/or different various homeowners could disagree as to whether a certain condition of real property and/or an article of personal property is blight,” and (2) certain specific portions of the “blight” definition were impermissibly vague as applied to him on various grounds. Additionally, the petitioner contends that there was no evidence introduced at the de novo hearing demonstrating that the conditions constituting blight existed on the property.
We need not consider whether each provision of the
We conclude that the petitioner has not satisfied his burden with respect to part B of the definition of “blight” set forth in § 159-3 of the anti-blight ordinance, which provides that property that “is not being maintained” is considered blighted. Elsewhere in § 159-3, the phrase “not being maintained” is defined in relevant part as follows: “A structure is not being maintained if any of the following conditions apply: . . . C. Garbage, trash, litter, rubbish, or debris are situated on the premises.”
A
We first consider whether § 159-3 of the anti-blight ordinance, insofar as it provides that property is blighted if it is not being maintained in that “[g]arbage, trash, litter, rubbish, or debris are situated on the premises,” was unconstitutionally vague as applied to the petitioner. We conclude that it was not.
“As a threshold matter, it is necessary to discuss the applicable standard of review. A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity. . . . The party challenging a statute‘s constitutionality has a heavy burden of proof; the unconstitutionality must be proven beyond all reasonable doubt. . . . Additionally, in a vagueness challenge, such as this, civil statutes can be less specific
“To demonstrate that [a statute] is unconstitutionally vague as applied to [him], the [petitioner] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . The determination of whether a statutory provision is unconstitutionally vague is a question of law over which we exercise de novo review.” (Citations omitted; internal quotation marks omitted.) Ogden v. Zoning Board of Appeals, 157 Conn. App. 656, 668–69, 117 A.3d 986, cert. denied, 319 Conn. 927, 125 A.3d 202 (2015). The foregoing principles apply equally to municipal ordinances. See, e.g., id., 668–72 (analyzing claim that trial court erroneously concluded that zoning regulations were unconstitutionally vague as applied); Booker v. Jarjura, 120 Conn. App. 1, 24–26, 990 A.2d 894 (analyzing claim that trial court erroneously concluded that provision of city charter was not unconstitutionally vague as applied), cert. denied, 297 Conn. 909, 995 A.2d 636 (2010).
The petitioner does not contend on appeal that the terms “garbage, trash, litter, rubbish, or debris” pursuant to § 159-3 of the anti-blight ordinance are ambiguous such that he had inadequate notice as to whether those conditions existed on the property;13 rather, the only cognizable argument that the petitioner presents in support of his contention that the provision of the anti-blight ordinance at issue was impermissibly vague as applied to him is that different city officials and different homeowners could disagree as to whether the conditions on his property constituted blight. In essence, the petitioner appears to be raising the specter of the anti-blight ordinance being applied in an arbitrary and discriminatory manner.
“To demonstrate that [a] statute‘s vagueness gives an agency unbridled discretion to enforce the statute arbitrarily and discriminatorily, the challenging party must establish that he was the victim of such arbitrary and discriminatory enforcement.” Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 592, 590 A.2d 447 (1991). The petitioner argues that the city arbitrarily targeted him as evidenced by a small claims
B
We next turn to the question of whether there was insufficient evidence establishing that “garbage, trash, litter, rubbish, or debris” was situated on the property in violation of the § 159-3 of the anti-blight ordinance. This issue warrants little discussion.
“Because the . . . claim challenges the sufficiency of the evidence, which is based on the court‘s factual findings, the proper standard of review is whether, on the basis of the evidence, the court‘s finding . . . was clearly erroneous. . . . In other words, a court‘s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficiency when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Moreover, we repeatedly have held that [i]n a [proceeding] tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . Where there is conflicting evidence . . . we do not retry the facts or pass on the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine.” (Internal quotation marks omitted.) Seale v. Geo-Quest, Inc., 189 Conn. App. 587, 592, 208 A.3d 326 (2019). Here, the petitioner cites to his own testimony elicited during the de novo hearing that he cleaned the property, thereby bringing it into compliance with § 159-3 of the anti-blight ordinance. The petitioner, however, overlooks the photographs of the property introduced into evidence during the hearing and Miller‘s testimony, which amply demonstrate that “garbage, trash, litter,
The judgment is affirmed.
In this opinion the other judges concurred.
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