TOWN OF WETHERSFIELD ET AL. v. PR ARROW, LLC
(AC 40407)
Connecticut Appellate Court
Argued October 15, 2018—officially released February 5, 2019
Keller, Elgo and Sullivan, Js.
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Syllabus
The defendant appealed to the trial court from the decision by the plaintiff town upholding a cease and desist order that had been issued by the plaintiff zoning enforcement officer, L. The cease and desist order stated, inter alia, that the defendant was in violation of the applicable town zoning regulation (
- The defendant could not prevail on its claims that because the plaintiff did not plead an accessory use violation, the trial court lacked subject matter jurisdiction as to the issue of whether the parking and storage of commercial vehicles on its property constituted a valid accessory use, and that L lacked standing to bring an action on behalf of himself or the town: that court properly retained jurisdiction as to the accessory use issue, as that question fell within the authority conferred on the court by
§ 8-12 , the plaintiffs raised that issue in their complaint and prayer for relief, and it was proper for the court, after the granting of a permanent injunction related to trucking operations conducted on the property without a special permit, to retain jurisdiction to the extent that there was a question on an accessory use with respect to commercial vehicles stored on the property; moreover, because the defendant failed to challenge the standing of the town to maintain this action pursuant to§ 8-12 and the town was a party to the zoning enforcement action, there was no justiciable controversy as to the standing of L, and, therefore, the defendant‘s appeal as to the standing of L was dismissed as moot. - The trial court properly determined that the defendant failed to exhaust its administrative remedies as to its special defense that L exceeded his authority in issuing the cease and desist order:
a. Although the defendant claimed that the zoning regulations vest exclusive authority in the town Planning and Zoning Commission to interpret words in the zoning regulations that are undefined, it was required first to raise its claim before the zoning board, which is empowered by statute (§ 8-6 [a] [1] ) and the applicable town zoning regulation (§ 10.4.B.2 ) to decide appeals where it is alleged that there is an error in any order of a zoning enforcement officer and, thus, had the power to determine whether L exceeded his authority in issuing the order in the present case; accordingly, the defendant was required to exhaust that administrative remedy before raising such a claim in the Superior Court, which it indisputably did not do.
b. The defendant‘s claim that an exception to the exhaustion requirement applied because an appeal to the board would have been futile was unavailing, as that claim was unsupported by the record and speculative: the board had the authority to determine whether there was any error in the cease and desist order, and to the extent that it did not rule in the defendant‘s favor, an avenue of judicial review was available to the defendant pursuant to statute (§ 8-8 [b] ); furthermore, only one of the defendant‘s six special defenses raised a constitutional claim, which was that§ 5.2.H.5 was void for vagueness and, thus, was excepted from the exhaustion requirement, and the trial court properly determined that the exhaustion requirement pertained to the remaining special defenses, which concerned the actions of L in issuing the order and did not fall within the narrow exception to the exhaustion requirement for constitutional claims. - The defendant could not prevail on its claim that
§ 5.2.H.5 of the zoning regulations was void for vagueness, which was based on its claim that the words “trucking or freight operations” were not defined in the regulations and that, without a definition, it could not ascertain whether the parking and storage of commercial vehicles on its property is prohibited: the term trucking operations pertained to all phases of the business of transporting goods on trucks, L testified that the storage of trucks was a significant facet of a trucking business, the title of§ 5.2.H , which mentions storage uses, underscored the applicability of§ 5.2.H.5 to the storage of commercial vehicles by trucking companies, and the defendant and its representatives were capable of utilizing their common sense when construing§ 5.2.H.5 , which dictated that the parking and storage of trucks was part and parcel of trucking operations; moreover,§ 5.2.H.5 provided adequate notice to the defendant of the standards utilized to evaluate a special permit request for the parking and storage of commercial vehicles, as it was the only provision in the regulations that ostensibly encompassed the storage of commercial vehicles as a principal use and specifically permitted trucking operations as a conditional principal use in the business park zone, the defendant was charged with knowledge that the storage of commercial vehicles must be specifically permitted under the regulations, which are permissive in nature, and§ 5.2.H.5 expressly required complete visual screening of equipment on the defendant‘s property, provides that owners of property in a business park zone must obtain a special permit for a conditional use from the commission before engaging in trucking operations on the property, and contained detailed criteria that governed special permit applications and the storage of commercial vehicles. - The defendant could not prevail on its claim that the trial court improperly interpreted the term trucking operations and substituted its interpretation for that of the commission; that court accorded trucking and freight operations its ordinary meaning, its construction was consistent with the apparent intent of the commission in enacting
§ 5.2.H.5 , as the permissive nature of the regulations demonstrated that the commission intended to confine the principal uses of property in the business park zone to those specified in§ 5.2 and the commission‘s classification of trucking operations as a conditional use that required a special permit indicated that it wanted to retain an additional degree of oversight and control over such activities, and the court was not bound by the interpretation of§ 5.2.H.5 by the commission or zoning board, as the construction of the zoning regulation presented a question of law over which the court was obligated to exercise plenary review. - The trial court properly exercised its discretion in fashioning permanent injunctive relief in favor of the plaintiffs, as the court was presented with evidence that commercial vehicles were being stored by trucking companies on the defendant‘s property in contravention of the regulations, and the court, as the arbiter of credibility, was free to credit that evidence.
- The defendant‘s claim that the trial court‘s injunction lacked sufficient clarity and definiteness was unavailing, the defendant having mischaracterized the wording of the court‘s decision; the plain terms of the court‘s order were sufficiently clear and definite, as they informed the defendant that it must obtain a special permit in accordance with the zoning regulations in order to conduct trucking or freight operations on its property as a principal use.
- The trial court did not abuse its discretion by imposing a daily fine against the defendant; although the defendant claimed that the imposition of a fine was improper because the plaintiffs had failed to prove that the storage of commercial vehicles on the defendant‘s property was a public nuisance,
§ 8-12 does not contain any such requirement, the defendant provided no authority mandating such proof and, to obtain relief under§ 8-12 , the plaintiffs needed to prove only that the regulations were violated, and it was within the court‘s discretion to impose the fine, as the circumstances required, from the date that the defendant withdrew its first appeal to the board to the date of the court‘s judgment. - The court did not abuse its discretion in awarding costs and attorney‘s fees to the plaintiffs pursuant to
§ 8-12 , as the court set forth the applicable standard for wilfulness in the zoning violation context, found that the defendant willingly allowed a use of its property in contravention of the regulations after the cease and desist order had been issued, and noted that there was no evidence that weighed in the defendant‘s favor. - The defendant‘s claims that the trial court lacked subject matter jurisdiction over the plaintiffs’ motion for contempt and that the motion was filed prematurely and granted improperly, were unavailing:
a. The trial court‘s jurisdiction over the contempt motion stemmed from its inherent authority to enforce its orders; the defendant provided no authority indicating that a court lacks subject matter jurisdiction over a postjudgment motion for indirect civil contempt unless a separate and distinct proceeding is commenced in the trial court, and although defense counsel, for the first time, moved to dismiss the plaintiff‘s motion for contempt at the hearing thereon due to allegedly insufficient service of process, the trial court concluded that the defendant waived that objection to the contempt motion when it did not file a timely motion to dismiss, and the defendant, by filing an objection to the motion and a memorandum of law, and then fully participating in the contempt hearing, submitted to the jurisdiction of the court.
b. The trial court properly granted the plaintiffs’ motion for contempt; the plaintiffs were entitled to file their contempt motion at any time after the court issued its permanent injunction, the defendant having failed to provide any authority to the contrary or to request a discretionary stay of the trial court‘s order pursuant to the applicable rule of practice (§ 61-12 ), the evidence adduced at the contempt hearing substantiated the court‘s finding that the zoning violations that gave rise to this enforcement action still existed on the property, and although the defendant claimed that it operated under a good faith belief that certain efforts it had taken constituted compliance with the court‘s order, the trial court rejected the defendant‘s purported good faith understanding of its order, and in finding that the defendant‘s failure to comply with the order was not excused by its disingenuous attempts to avoid compliance and that a finding of contempt was therefore warranted, the court necessarily concluded that the defendant‘s violation of the court‘s order was wilful.
Argued October 15, 2018—officially released February 5, 2019
Procedural History
Appeal from the decision by the named plaintiff upholding an order issued to the defendant by the plaintiff zoning enforcement officer of the town of Wethersfield to cease and desist certain activities on certain of the defendant‘s real property, brought to the Superior Court in the judicial district of Hartford, where the matter was transferred to the Land Use Litigation Docket and tried to the court, Berger, J.; thereafter, the court granted in part the plaintiffs’ motion to preclude certain evidence; judgment for the plaintiffs, from which the defendant appealed to this court; subsequently, the court, Berger, J., denied the defendant‘s motion to dismiss and granted the plaintiffs’ motion for contempt, and the defendant filed an amended appeal. Appeal dismissed in part; affirmed.
Kevin J. Burns, for the appellant (defendant).
Thomas A. Plotkin, with whom, on the brief, was John W. Bradley, Jr., for the appellees (plaintiffs).
TOWN OF WETHERSFIELD ET AL. v. PR ARROW, LLC
(AC 40407)
Connecticut Appellate Court
Argued October 15, 2018—officially released February 5, 2019
Opinion
This appeal concerns activities conducted on real property known as 61 Arrow Road in Wethersfield (property) that at all relevant times was owned by the defendant. The property is located in the “Business Park (BP)” zoning district and is approved for office and industrial use. Principal and accessory uses permitted in the BP zone are specified in
At all relevant times, LaFountain served as the town‘s zoning enforcement officer. In that capacity, he acted as the agent of the town‘s Planning and Zoning Commission (commission). See Piquet v. Chester, 306 Conn. 173, 176 n.1, 49 A.3d 977 (2012) (“[t]he zoning enforcement officer acts as the agent of the local planning and zoning commission“);
On December 2, 2015, the defendant filed an appeal of that order with the town‘s Zoning Board of Appeals (board). The “appeal application” form completed by the defendant asks applicants to “[p]lease describe your appeal (please include your documentation backing up your appeal).” In response to that query, the defendant attached a document that enumerated nine distinct grounds of appeal.3 Before the board could hold a public
When activities allegedly continued on the property in contravention of the order, the plaintiffs commenced the present action pursuant to
On June 23, 2016, the defendant filed its answer, in which it denied that any of the alleged violations had transpired on the property. The defendant also raised six special defenses,7 which the plaintiffs denied
Prior to the filing of the defendant‘s answer, the plaintiffs had filed a motion in limine, in which they sought to preclude “all evidence, whether testimonial or documentary, pertaining to any issue which was included in the defendant‘s appeal of the [order], which appeal was filed with the [board] but withdrawn prior to an evidentiary hearing by that municipal board.” In that motion, the plaintiffs argued that, “[h]aving failed to first proceed with an available administrative process provided . . . by statute, the defendant should not be permitted to present any such evidence or argument in this case.” Relying principally on Greenwich v. Kristoff, 180 Conn. 575, 430 A.2d 1294 (1980), the plaintiffs claimed that “[s]ince the defendant chose to withdraw its [board] appeal of the [order] prior to that evidentiary hearing, this court should prohibit the defendant from now asserting [its] purported defenses in this zoning enforcement litigation.” By order dated October 13, 2016, the court ruled that “[t]he issues in the motion [in limine] will be taken up at trial.”
A two day court trial was held in January, 2017. At its outset, the court addressed the motion in limine. The court explained that it was granting the motion insofar as the defendant sought to present evidence on special defenses that had been raised in the defendant‘s appeal to the board. The court nonetheless advised the parties that it would consider such evidence to the extent that it was relevant to the balancing of the equities inherent in injunctive relief.
At trial, more than 100 exhibits were admitted into evidence, including dozens of photographs depicting what generically may be described as commercial trucks parked on the property.8 In addition, two witnesses testified—LaFountain and John A. Tartaglia, the manager and 1 percent owner of the defendant. In his testimony, Tartaglia explained that the property was 5.5 acres in size and contained a 41,000 square foot building (building) “divided into twelve commercial bays and an office wing . . . .” He also testified that the property contained three parking lots located on the northerly, easterly, and southerly sides of the building. Tartaglia indicated that the northerly parking lot located to the rear of the building was only partially paved; the remainder was gravel. The majority of the photographs admitted into evidence depict commercial trucks parked on that rear lot.
The court also was presented with evidence, which it acknowledged in its memorandum of decision, that subsequent to the issuance of the order, Tartaglia sought to enter into lease agreements with tenants that were not renting space in the building. The deposition testimony of Melissa Ahmetovic was admitted as a full exhibit at trial. In that testimony, Ahmetovic confirmed that she operated a business with her husband known as M&A Express Transport, LLC, a “trucking company” that transported goods across the country. In 2015, M&A Express Transport, LLC, began renting space from the defendant to store its trucks on the property. Ahmetovic testified that, after LaFountain issued the order, Tartaglia contacted her and “said that he‘s going to make out a lease agreement stating that [Ahmetovic had] an office in there, there will be an office . . . on the last floor of the building . . . just in case the [plaintiff] comes after him, to state that [she did] have an office there, that [she does] work and everything, just
At trial, the parties offered contrasting interpretations of
In his testimony, LaFountain stated that he had consulted those resources and also noted that
In its April 20, 2017 memorandum of decision, the court found that the plaintiffs had “clearly proved by a preponderance of the evidence that the defendant is engaging in a trucking or freight operation without a special permit in violation of the town‘s zoning regulations. Notwithstanding Tartaglia‘s protestations and his allowed testimony on equitable considerations, there is no evidence that weighs in the defendant‘s favor.” The court thus granted the plaintiffs’ request for permanent injunctive relief and ordered: “[T]he defendant must comply with the town‘s regulations. If it seeks to conduct such trucking and freight operations on the property, it must first obtain a special permit to do so in accordance with the town‘s zoning regulations. Hence, all trucking operations not associated with a specific tenant business use on the property . . . or any trucking and freight operations being conducted without a special permit must immediately cease. Further, in accordance with
The plaintiffs subsequently filed a motion for contempt with the trial court, alleging in relevant part that the defendant “continues to operate trucking or freight operations on the property, and continues to allow the parking or storage of trucks without a special permit in violation of the [regulations] and in violation of this court‘s order that [it] immediately cease the illegal activity.” The defendant filed an objection to that motion, and the court held a hearing on July 6, 2017. By memorandum of decision dated August 18, 2017, the court granted the motion for contempt, finding that “the testimony and the evidence is clear that the subject violations still exist.” The court then expressly “deferred the issue of monetary penalties” while the underlying matter was on appeal, but noted that “[t]he evidence from this proceeding will be included in that evaluation.” The defendant thereafter filed an amended appeal with this court to encompass the trial court‘s ruling on the motion for contempt.
I
The defendant claims that the trial court lacked subject matter jurisdiction in two respects. It first alleges that “because [the] plaintiff[s] did not plead an accessory use violation, the court erred in making findings and retaining jurisdiction thereon.” The defendant also argues that LaFountain
“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). “Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Metropolitan District v. Commission on Human Rights & Opportunities, 180 Conn. App. 478, 485, 184 A.3d 287, cert. denied, 328 Conn. 937, 184 A.3d 267 (2018). “Any determination regarding the scope of a court‘s subject matter jurisdiction or its authority to act presents a question of law over which our review is plenary.” Tarro v. Mastriani Realty, LLC, 142 Conn. App. 419, 431, 69 A.3d 956, cert. denied, 309 Conn. 912, 69 A.3d 308, 309 (2013). In addition, when a decision as to whether a court has subject matter jurisdiction is required, “every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).
A
The defendant‘s first claim requires little discussion. The plaintiffs brought this action pursuant to
While the court generally is not permitted to decide issues beyond those raised in the pleadings; see Lynn v. Bosco, 182 Conn. App. 200, 213, 189 A.3d 601 (2018); the plaintiffs in their complaint raised the issue of whether the activities in question constituted a valid accessory use.17 Paragraph 6 of that pleading complains of “the existence of . . . commercial vehicles at the property, which were not accessory to any use by a tenant. . . .”18 Paragraph 8 then alleges in relevant part that “[t]he current violations of the regulations at the property include . . . [b] the parking and storage of several commercial vehicles that are not associated with any business operating at this property; [c] the frequent
Although the defendant argues that the court improperly retained jurisdiction on that issue, it is well established that “a permanent injunction necessarily requires continuing jurisdiction . . . .” Hall v. Dichello Distributors, Inc., 14 Conn. App. 184, 193, 540 A.2d 704 (1988); accord AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 242 n.11, 796 A.2d 1164 (2002) (“courts have inherent power to change or modify their own injunctions that is not limited by [General Statutes]
B
The defendant also argues that LaFountain lacks standing in the present case. Because the defendant does not challenge the standing of the town to maintain this zoning enforcement action, that claim is moot.
In DeRito v. Zoning Board of Appeals, 18 Conn. App. 99, 100, 556 A.2d 632 (1989), the defendant property owners appealed to this court from the judgment of the trial court in favor of the plaintiffs, the town of Middlebury and its zoning enforcement officer. On appeal, the defendants challenged the standing of the zoning enforcement officer. This court declined to consider the merits of that contention, stating: “[T]he defendants do not challenge the standing of the plaintiff town of Middlebury . . . . Thus, even without [the zoning enforcement officer] as a party to the [action], the trial court had subject matter jurisdiction . . . by virtue of the presence of the plaintiff town of Middlebury.” (Citations omitted.) Id., 103. As a result, this court concluded that “the standing of [the zoning enforcement officer] . . . presents no justiciable controversy on appeal” because “[n]o practical relief can be granted to the defendants on this claim, and it is not the province of appellate courts to decide questions disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Id., 103-104. The court thus dismissed that part of the appeal. Id., 104.
That logic applies equally to the present case. Here, the town is a party to the zoning enforcement action brought against the defendant pursuant to
II
We next address the defendant‘s claim that the court improperly applied the doctrine of exhaustion of administrative remedies to its special defenses due to the defendant‘s withdrawal of its appeal to the board. The applicability of that doctrine implicates the subject matter jurisdiction of the Superior Court; Piquet v. Chester, supra, 306 Conn. 179; and thus presents a question of law over which our review is plenary. Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 208, 105 A.3d 210 (2015).
A
“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. . . . Under that doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum. . . . In the absence of exhaustion of that remedy, the action must be dismissed.” (Internal quotation marks omitted.) Republican Party of Connecticut v. Merrill, 307 Conn. 470, 477, 55 A.3d 251 (2012); see also Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938) (“no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted“). “The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board‘s judgment.” (Internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 504, 661 A.2d 1018 (1995); see also Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 692, 553 A.2d 1104 (1989) (exhaustion doctrine “relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review“). Our courts have long recognized that the doctrine applies to administrative proceedings of municipal land use agencies such as the board. See, e.g., Piquet v. Chester, supra, 306 Conn. 190-91; Simko v. Ervin, supra, 503; Florentine v. Darien, 142 Conn. 415, 431, 115 A.2d 328 (1955).
Under Connecticut law, municipal zoning boards of appeal are empowered “[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .”
Like the present case, Piquet v. Chester, supra, 306 Conn. 176, involved a cease and desist order issued by a municipal zoning enforcement officer. After reviewing the doctrine of exhaustion of administrative remedies, our Supreme Court held that “when a landowner receives notice from a zoning [enforcement] officer that the landowner‘s existing use of his or her property is in violation of applicable zoning ordinances or regulations, that interpretation constitutes a decision from which the landowner can appeal to the local zoning board of appeals . . . .” Id., 185; see also Greenwich v. Kristoff, supra, 180 Conn. 578 (“[c]learly the defendant had a statutory right to appeal the cease and desist order to the zoning board of appeals“); Holt v. Zoning Board of Appeals, 114 Conn. App. 13, 22, 968 A.2d 946 (2009) (“[a]ppeals [to the zoning board of appeals] are often taken from actions of zoning enforcement officers that involve . . . the issuance of cease and desist orders“). The court thus concluded that the plaintiff‘s failure to exhaust that administrative remedy prior to instituting a declaratory action “left the trial court without jurisdiction . . . .”21 Piquet v. Chester, supra, 191.
In the present case, LaFountain issued a cease and desist order that apprised the defendant that, in his view, the existing use of the property violated the regulations. Inherent in that order was a determination that the defendant did not have a valid nonconforming use. See Greenwich v. Kristoff, supra, 180 Conn. 578. Pursuant to both
On appeal, the defendant attempts to draw a distinction between LaFountain‘s interpretation of the regulations and his authority to do so, claiming that
B
The defendant further claims that two exceptions to the exhaustion requirement excuse its failure to obtain a ruling from the board on the propriety of the order. We address each in turn.
1
The defendant first invokes the futility exception to the exhaustion requirement, claiming that an appeal to the board in this case “would have been futile . . . .” As our Supreme Court has explained, the futility exception applies ”only when [the administrative remedy] could not result in a favorable decision . . . .” (Emphasis added.) O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995); see also Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 560, 529 A.2d 666 (1987) (“[f]utility is more than a mere allegation that the administrative agency might not grant the relief requested. In most instances, we have held that the failure to exhaust an administrative remedy is permissible only when the administrative remedy would be useless.“). Our Supreme Court further has instructed that “an administrative remedy is adequate when it could provide the [party] with the relief that it seeks and provide a mechanism for judicial review of the administrative decision.” O & G Industries, Inc. v. Planning & Zoning Commission, supra, 426.
The defendant‘s bald allegation that an appeal to the board would have been futile finds no support in the record before us and, thus, is “purely speculative.” Id., 429. In the present case, the board had the authority, under both state law and municipal regulation, to determine whether there was any error in the order issued by LaFountain. Moreover, to the extent that the board did not rule in the defendant‘s favor, an avenue of judicial review was available pursuant to
2
The defendant also claims that its constitutional claims are excepted from the exhaustion requirement. Our Supreme Court has recognized a “narrow exception” for claims of constitutional dimension; LaCroix v. Board of Education, 199 Conn. 70, 79, 505 A.2d 1233 (1986); that “applies when the challenge is to the constitutionality of the statute or regulation under which the board or agency operates, rather than to the actions of the board or agency.” O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 426 n.5; see also Conto v. Zoning Commission, 186 Conn. 106, 115, 439 A.2d 441 (1982) (constitutional exception applies when party alleges “[a] constitutional defect in the [zoning] regulations whose enforcement is at issue“); Helbig v. Zoning Commission, 185 Conn. 294, 300, 440 A.2d 940 (1981) (“[o]ur estoppel doctrine does not preclude a party from attacking the constitutionality of a statute or [zoning] ordinance in an independent proceeding“). That exception to the exhaustion requirement also applies when a defendant raises “the constitutional validity of a municipal [zoning] ordinance [as a defense to] an action to enforce its provisions against [the defendant].” Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 5, 544 A.2d 152 (1988).
In answering the complaint in the present case, the defendant raised multiple defenses predicated on protections embodied in our state and federal constitutions. See footnote 7 of this opinion. With one exception, those defenses all pertain to the actions of LaFountain in issuing the order, which are beyond the narrow purview of the constitutional exception. See O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 426 n.5. The court, therefore, properly determined that the exhaustion requirement applied to those defenses.
The exception is the defendant‘s fifth special defense, in which the defendant argues that
III
The void for vagueness doctrine “is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. . . . [Our Supreme Court has] equated vagueness analysis under our state constitution with the corresponding federal constitutional analysis.” (Citation omitted; internal quotation marks omitted.) State v. McMahon, 257 Conn. 544, 551 n.9, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130 (2002). “The vagueness rubric . . . is largely based on the requirements of fair notice and nondiscretionary standards. . . . Due process requires that a statute afford a person of ordinary intelligence a reasonable opportunity to know
Civil enactments like the zoning regulation at issue in the present case “must be definite in their meaning and application, but may survive a vagueness challenge by a lesser degree of specificity than in criminal statutes.” (Internal quotation marks omitted.) Id., 757. “In order to pass constitutional muster, a zoning ordinance need not contain detailed and rigid standards that anticipate every conceivable factual situation. Indeed, [our Supreme Court has] recognized that detailed standards within a zoning ordinance that may be impractical or impossible to apply are not necessary, and that some flexibility is permitted when one standard cannot be adopted to all situations.” Campion v. Board of Aldermen, 278 Conn. 500, 526, 899 A.2d 542 (2006). Furthermore, when the regulation at issue pertains to a specially permitted use,24 additional leeway “must be afforded” in construing its wording. Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992).
A municipal zoning regulation, like a statute, “is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity.” (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 672, 894 A.2d 285 (2006). “The party challenging a [regulation‘s] constitutionality has a heavy burden of proof; the unconstitutionality must be proven beyond all reasonable doubt.” Bottone v. Westport, 209 Conn. 652, 657, 553 A.2d 576 (1989). That heavy burden requires proof “that the regulation complained of is impermissibly vague as applied to the facts of the particular case.” (Emphasis added.) Barberino Realty & Development Corp. v. Planning & Zoning Commission, supra, 222 Conn. 620; see also Bombero v. Planning & Zoning Commission, 218 Conn. 737, 743, 591 A.2d 390 (1991) (because regulations “do not exist in a vacuum,” courts should evaluate “their purported vagueness . . . in the context of a specific factual situation, so that a court may resolve any ambiguities and, if necessary, interpret them in the light of those facts so as to avoid any potentially unconstitutional vagueness“); Rocque v. Farricielli, 269 Conn. 187, 205, 848 A.2d 1206 (2004) (“[t]o do otherwise . . . would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the regulation]” [internal quotation marks omitted]). Accordingly, “outside the context of the first amendment, in order to challenge successfully the facial validity of a [regulation], a party is required to demonstrate . . . that the [regulation] may not be applied constitutionally to the facts of [the]
A
Because Regulations Are Permissive, Parking And Storage of Commercial Vehicles On Defendant‘s Property Must Be Specifically Permitted
We begin our analysis by noting the overarching principle that any use of real property in the town is “prohibited if not clearly permitted” under the regulations.25 Like the majority of municipalities in Connecticut, the town‘s regulations here are “permissive in nature, meaning that those matters not specifically permitted are prohibited.” Graff v. Zoning Board of Appeals, supra, 277 Conn. 653. The defendant, like all property owners in the town, therefore was charged with notice that any activity conducted on the property must be specifically permitted under the regulations. See M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 244-45, 445 A.2d 591 (1982) (buyers of property charged with knowledge of zoning regulations); Kalimian v. Zoning Board of Appeals, 65 Conn. App. 628, 632, 783 A.2d 506 (property owner “charged with notice” of “zoning regulations in effect” when purchasing property), cert. denied, 258 Conn. 936, 785 A.2d 231 (2001).26
The activity at issue in this case is the parking and storage of commercial vehicles on real property located in the BP zone. Only three sections of the regulations specifically address that activity.27 The first two deal with accessory use.
Principal uses of real property permitted in the BP zone are set forth in
B
Language of § 5.2.H.5
On appeal, the defendant claims that
tions’’ are not defined in the regulations. Without a definition, the defendant argues, it cannot ascertain whether the parking and storage of commercial vehicles is prohibited on its property. We disagree.
Furthermore, it bears emphasis that § 5.2.H.5 is a subsection of § 5.2.H—a section of the regulations titled ‘‘Industrial & Storage Uses.’’ (Emphasis added.) That title is illuminating; see P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 160, 454 A.2d 1258 (1983); and further underscores the applicability of § 5.2.H.5 to the storage of commercial vehicles by trucking companies in the BP zone.
In construing the words of a zoning regulation, ‘‘common sense must be used.’’ Smith v. Zoning Board of Appeals, 227 Conn. 71, 92, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994). To paraphrase the observation of our Supreme Court in Graff v. Zoning Board of Appeals, supra, 277 Conn. 675, the defendant and its representatives were just as capable of utilizing their common sense when construing § 5.2.H.5 of the regulations as any other member of the general public, which dictates that the parking and storage of trucks is part and parcel of trucking operations.
C
Adequacy of Notice
The remaining question is whether the regulations provided the defendant adequate notice of the standards utilized to evaluate a request for that permitted use. See Campion v. Board of Aldermen, supra, 278 Conn. 526. That query must be resolved in light of the ‘‘specific factual situation’’ presented in this case. Bombero v. Planning & Zoning Commission, supra, 218 Conn. 743.
The specific factual situation here is a property owner that knowingly allowed trucking companies to store their commercial vehicles on its property. Tartaglia acknowledged that most of his tenants were registered as transport companies, such as Igor Stefak, who operated Igor Transportation, LLC. Tartaglia testified that Stefak had ‘‘a United States Department of Transportation carrier license’’ and was storing ‘‘ten or eleven’’ commercial vehicles on the property at the time of trial. M&A Express Transport, LLC, is another trucking company that stored its trucks on the property. As Tartaglia emphatically stated at the subsequent contempt hearing, the defendant’s tenants were ‘‘registered as transport companies or courier companies. Indeed, that is their business. They transport through the United States Postal Service, pharmaceutical companies, Amazon. At my property, they operate offices and they park their trucks. . . . We have never denied this.’’ It suffices to say, then, that the defendant was cognizant that trucking companies were storing
Because the regulations here are permissive in nature, the defendant is charged with knowledge that the storage of those commercial vehicles on the property must be specifically permitted thereunder. See
With respect to the standards governing its application, § 5.2.H.5 expressly requires ‘‘complete visual screening of equipment’’ on the property.33 Section 5.2.H.5 further provides that owners of property in the BP zone must obtain a special permit for a conditional use from the commission before engaging in trucking operations on the property. As our Supreme Court has explained, ‘‘a specially permitted use is ordinarily allowed in any existing zoning district, provided, of course, that the site plan conforms to the regulations governing special permits. Unlike a permitted use wherein the commission has already made the determination that a particular use is appropriate in a particular area, in reviewing a special permit application the commission must examine the proposed site plan submitted with the application and determine, inter alia, whether it would be compatible with the zoning district and the existing structures permitted in that zone as of right. . . . The commission, therefore, must tailor its review of each site plan accompanying a special permit application to the particular zoning district in which the landowner seeks to develop.’’ Barberino Realty & Development Corp. v. Planning & Zoning Commission, supra, 222 Conn. 620.
The regulations here contain detailed criteria that govern special permit applications; see
It nevertheless remains that the commission’s ‘‘[r]eview of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed [use] would be [made].’’ Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 457, 853 A.2d 511 (2004). That ‘‘fact-specific inquiry makes the [commission’s] approval of a similar facility at another site . . . legally irrelevant.’’ Id. For that reason, our Supreme Court has instructed that a commission ‘‘must be afforded’’ additional leeway ‘‘in the wording of the regulations’’ when a vagueness challenge to a specially permitted use regulation is raised. Barberino Realty & Development Corp. v. Planning & Zoning Commission, supra, 222 Conn. 620. Affording that leeway, we conclude that § 5.2.H.5 provided the defendant with adequate notice of the standards utilized to evaluate a special permit request for that conditional use.
D
CONCLUSION
In light of the foregoing, and making every presumption in favor of its validity, we conclude the defendant has not met its burden of demonstrating beyond all reasonable doubt that § 5.2.H.5, as applied to the specific facts of this case, clearly and unequivocally is impermissibly vague. See Graff v. Zoning Board of Appeals, supra, 277 Conn. 672. Section 5.2.H.5 sufficiently apprises persons of ordinary intelligence that the storage of commercial vehicles by trucking companies as a principal use of property in the BP zone requires a special permit from the commission.
IV
The defendant also claims that the court improperly (1) interpreted § 5.2.H.5 and (2) substituted its interpretation for that of the commission in so doing. We do not agree.
The defendant’s first claim does not merit extensive discussion. In its decision, the court accorded the phrase ‘‘trucking or freight operations’’ its ordinary meaning, as gleaned from definitions contained in our General Statutes and dictionaries. The court’s construction fully comports with that set forth in part III B of this opinion.
Moreover, the court’s construction is consistent with the apparent intent of the commission in enacting § 5.2.H.5. See Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001) (‘‘in construing regulations, our function is to determine the expressed legislative intent’’). The explicitly permissive nature of the regulations; see part III A of this opinion; demonstrates that the commission, in enacting those regulations, intended to confine the principal uses of property in the BP zone to those specified in § 5.2. Furthermore, the fact that the commission classified trucking operations conducted in the BP zone as a ‘‘conditional use’’ requiring special permit approval from the commission indicates that it wanted to retain an additional degree of oversight and control over such activities, consistent with the primary aim of zoning, which ‘‘is to promote the health, safety, welfare and prosperity of the community.’’ Langbein v. Board of Zoning Appeals, 135 Conn. 575, 580, 67 A.2d 5 (1949); see also Smith v. Planning & Zoning Board, 3 Conn. App. 550, 554, 490 A.2d 539 (1985) (‘‘purpose of zoning is to regulate property uses
We likewise find no merit to the defendant’s contention that the court improperly substituted its interpretation of § 5.2.H.5 for that of the commission. Although a municipal planning and zoning commission often interprets undefined terms in the first instance, it is well established that the proper construction of a zoning regulation presents a question of law over which a court exercises plenary review. Hasychak v. Zoning Board of Appeals, 296 Conn. 434, 442, 994 A.2d 1270 (2010). For that reason, our courts are not bound by the legal interpretation of a regulation provided by a planning and zoning commission or zoning board of appeals.35 See Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 414, 898 A.2d 157 (2006); Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998). Because the present case involves a question as to the proper construction of § 5.2.H.5, the trial court was obligated to conduct a plenary review thereof. The defendant’s claim, therefore, is baseless.
V
The defendant next argues that the court abused its discretion in granting a permanent injunction in favor of the plaintiffs. We disagree.
‘‘A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.’’ (Internal quotation marks omitted.) Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 807, 894 A.2d 946 (2006). ‘‘In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done.’’ (Internal quotation marks omitted.) Weiss v. Smulders, 313 Conn. 227, 261, 96 A.3d 1175 (2014).
The plaintiffs in the present case brought this action pursuant to
At trial, the court was presented with testimonial, documentary, and photographic evidence indicating that commercial vehicles were being stored by trucking companies on the defendant’s property in contravention of the regulations. The court, as arbiter of credibility, was free to credit that evidence. See Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004) (‘‘In a case 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. . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.’’ [Citation omitted; internal quotation marks omitted.]). In granting injunctive relief, the court ordered an immediate cease to ‘‘all trucking operations’’ that are (1) ‘‘not associated with a specific tenant business use on the property’’ and (2) ‘‘conducted without a special permit . . . .’’ The court further retained jurisdiction ‘‘[t]o the extent there is a question on an accessory use’’ with respect to particular vehicles on the property. In the present case, we cannot say that the court abused its discretion in doing so. Our review of the record convinces us that the court properly exercised its discretion in fashioning permanent injunctive relief in favor of the plaintiffs.
VI
The defendant also claims that the injunction ‘‘lacks sufficient clarity and definiteness.’’ That claim is predicated on a mischaracterization of the actual wording of the court’s decision. In its principal appellate brief, the defendant misquotes that decision to state: ‘‘ ‘If [the defendant] wishes to conduct such trucking or freight operations the defendant must first apply for and receive a special permit to do so.’ ’’ (Emphasis added.) The defendant then argues that the injunction ‘‘was conditional on a state of mind that was contradicted by . . . testimony [that] indicated that the defendant ‘did not wish to conduct trucking or freight operations’ . . . .’’
Contrary to the defendant’s contention, it remains that the salient portion of the court’s memorandum of decision states: ‘‘[T]he defendant must comply with the town’s regulations. If [the defendant] seeks to conduct such trucking and freight operations on the property, it must first obtain a special permit to do so . . . .’’ (Emphasis added.) By its plain terms, that order informed the defendant that it must obtain a special permit in accordance with the regulations in order to conduct trucking or freight operations on its property as a principal use. The court’s order thus was sufficiently clear and definite in its terms. See Castonguay v. Plourde, 46 Conn. App. 251, 268–69, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997).
VII
The defendant also challenges the court’s imposition of a ‘‘fine of $50 per day from January 22, 2016, to the date of this [April 20, 2017] order’’ pursuant to
We reject the defendant’s assertion that proof of a public nuisance is a prerequisite to the imposition of such fines.36
The defendant alternatively argues that the daily fine imposed by the court should not begin to accrue until the date of the trial court’s decision in this case. We disagree. In the order sent to the defendant on November 18, 2015, LaFountain informed the defendant that, in his view, the existing use of the property violated the regulations—specifically, trucking operations that were not accessory to a principal use and for which a special permit had not been secured. The defendant was free to appeal that determination to the board, which it initially did on December 2, 2015. The defendant withdrew that administrative appeal on January 22, 2016. In its memorandum of decision, the court imposed a daily fine from that date until ‘‘the [April 20, 2017] date of this order . . . .’’ As this court has observed, the trial court ‘‘has discretion to impose [daily] fines, as the circumstances require.’’ Stamford v. Stephenson, supra, 78 Conn. App. 826. We conclude that the court
VIII
The defendant next claims that the court abused its discretion in awarding costs and attorney’s fees pursuant to
In their complaint, the plaintiffs alleged ongoing violations of the regulations on the defendant’s property in violation of the order. After noting that the action was brought pursuant to
In its memorandum of decision, the court noted that a decision to grant or deny a request for injunctive relief must ‘‘take into account the gravity and willfulness of the violation . . . .’’ (Internal quotation marks omitted.) The court also stated that ‘‘[a] wilful act is one done intentionally or with reckless disregard of the consequences of one’s conduct. . . . Willfulness in violating a [zoning regulation] implies not so much malevolent design as action with knowledge that one’s acts are proscribed or with careless disregard for their lawfulness or unlawfulness.’’ (Internal quotation marks omitted.) The court then made a series of findings regarding the defendant’s conduct subsequent to the issuance of the order instructing the defendant to cease and desist all trucking operations on the property. The court found that ‘‘[t]he town was concerned with the trucking operations on the property, and the evidence indicates the defendant willingly allowed such a use.’’ (Emphasis added.) The court further found that ‘‘Tartaglia’s purported lack of knowledge in his testimony about the actual operations or the specific tenants storing trucks was not persuasive. . . . Notwithstanding Tartaglia’s protestations . . . there is no evidence that weighs in the defendant’s favor.’’ In light of those findings, the court, in fashioning relief, awarded the plaintiffs ‘‘costs and attorney’s fees to be established at a hearing at a later date.’’
This case thus is one in which the trial court was presented with a request for an award of costs and attorney’s fees that
IX
As a final matter, the defendant challenges the court’s finding of contempt. It raises two distinct claims in this regard. First, the defendant claims that the court lacked subject matter jurisdiction over the plaintiffs’ motion for contempt. Second, the defendant claims that the motion for contempt was premature and, thus, improperly granted.38 We are not persuaded.
Before considering the defendant’s specific claims, we note certain fundamental precepts. ‘‘It has long been settled that a trial court has the authority to enforce its own orders. This authority arises from the common law and is inherent in the court’s function as a tribunal with the power to decide disputes. . . . The court’s enforcement power is necessary to preserve its dignity and to protect its proceedings. . . . A party to a court proceeding must obey the court’s orders unless and until they are modified or rescinded, and may not engage in self-help by disobeying a court order to achieve the party’s desired end.’’ (Citations omitted; internal quotation marks omitted.) O’Brien v. O’Brien, 326 Conn. 81, 96–97, 161 A.3d 1236 (2017).
‘‘The court has an array of tools available to it to enforce its orders, the most prominent being its contempt power. . . . Our law recognizes two broad types of contempt: criminal and civil. . . . Civil contempt . . . is not punitive in nature but intended to coerce future compliance with a court order, and the contemnor should be able to obtain release from the sanction imposed by the court by compliance with the judicial decree. . . . A civil contempt finding thus permits the court to coerce compliance by imposing a conditional penalty, often in the form of a fine or period of imprisonment, to be lifted if the noncompliant party chooses to obey the court.’’ (Citations omitted; internal quotation marks omitted.) Id., 97–98.
‘‘To impose contempt penalties . . . the trial court must make a contempt finding, and this requires the court to find that the offending party wilfully violated the court’s order; failure to comply with an order, alone, will not support a finding of contempt. . . . Rather, to constitute contempt, a party’s conduct must be wilful. . . . Whether a party’s violation was wilful depends on the circumstances of the particular case and, ultimately, is a factual question committed to the sound discretion of the trial court. . . . Without a finding of wilfulness, a trial court cannot find contempt and, it follows, cannot impose contempt penalties.’’ (Citations omitted; internal
‘‘We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. . . . A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.’’ (Internal quotation marks omitted.) Bolat v. Bolat, supra, 182 Conn. App. 479–80.
A
The defendant first raises a jurisdictional challenge to the motion for contempt filed by the plaintiffs. Because the present case involves indirect civil contempt,39 the defendant argues that the constitutional guarantees of due process ‘‘[seem] to require a separate proceeding, with separate service’’ for the court to have subject matter jurisdiction over the plaintiffs’ motion.
The defendant has provided this court with no authority indicating that a court lacks subject matter jurisdiction over a postjudgment motion for indirect civil contempt unless a separate and distinct proceeding is commenced in the Superior Court. Rather, the court’s jurisdiction over such motions stems from its inherent authority to enforce its orders. As our Supreme Court has explained, ‘‘the trial court’s continuing jurisdiction to effectuate prior judgments . . . is not separate from, but, rather, derives from, its equitable authority to vindicate judgments. . . . [S]uch equitable authority does not derive from the trial court’s contempt power, but, rather, from its inherent powers.’’ (Emphasis in original.) AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 241, 796 A.2d 1164 (2002); see also Rozbicki v. Gisselbrecht, 152 Conn. App. 840, 846–47, 100 A.3d 909 (2014), cert. denied, 315 Conn. 922, 108 A.3d 1123 (2015). We therefore reject the defendant’s claim that the court lacked subject matter jurisdiction over the plaintiffs’ postjudgment motion for contempt.
With respect to service of process requirements, our Supreme Court has recognized that ‘‘due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.’’ (Internal quotation marks omitted.) Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985). ‘‘Adjudication of a motion for civil contempt . . . implicates these constitutional safeguards. . . . [W]here the alleged contempt does not occur in the presence of the court . . . process is required to bring the party into court, and the acts or omissions constituting the offense are to be proved as in ordinary cases.’’ (Internal quotation marks omitted.) Alldred v. Alldred, 132 Conn. App. 430, 434–35, 31 A.3d 1185 (2011), appeal dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). Accordingly, this court has held that ‘‘a postjudgment motion for contempt that is filed for the purpose
Service of process implicates the personal jurisdiction of the court. Id., 431. It is well established that ‘‘[a] challenge to a court’s personal jurisdiction . . . is waived if not raised by a motion to dismiss within thirty days . . . .’’ Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 32, 848 A.2d 418 (2004); see also
In its memorandum of decision on the motion for contempt, the court concluded that the defendant ‘‘clearly waived’’ that objection to the plaintiffs’ postjudgment motion for contempt because it did not file a timely motion to dismiss, as required by
B
The defendant also claims that the court improperly granted the plaintiffs’ motion for contempt. Because it allegedly had taken steps to secure compliance with the regulations, the defendant argues that the plaintiffs’ filing of the motion was premature. Once again, we disagree with the defendant.
We begin by noting that it is ‘‘within the equitable powers of the trial court to effectuate its prior judgment at any time, regardless of whether the noncompliant party [is] in contempt.’’ (Emphasis added; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Plan & Zoning Commission, supra, 260 Conn. 244. It is undisputed that the defendant did not request a discretionary stay of the court’s order pursuant to
We therefore turn to the substance of the defendant’s claim that the court improperly found it in contempt. The evidence adduced at the July 6, 2017 contempt hearing substantiates the court’s finding that the zoning violations that gave rise to this enforcement action ‘‘still exist’’ on the property. LaFountain testified that he had inspected the property on four separate occasions over the course of more than two months. Each time, he observed numerous commercial vehicles stored in the rear lot of the property.41 During those inspections, LaFountain took photographs, twenty-one of which were admitted into evidence at the contempt hearing. Those photographs depict the storage of commercial vehicles on the property that belong to trucking businesses. In light of his firsthand observation of the property in the months following the issuance of the permanent injunction, LaFountain testified that he believed that a zoning violation continued to exist on the property.
After the plaintiffs rested, the defendant called Tartaglia to the witness stand. In his testimony, Tartaglia confirmed that trucking businesses continued to store trucks on the property. Tartaglia also admitted that the defendant had not applied for a special permit to conduct trucking operations on the property. In addition, Tartaglia testified that he believed that the permanent injunction issued by the court months earlier was ‘‘unjust, unfair, inequitable and an affront,’’ stating ‘‘that’s my opinion and I’m entitled to it.’’44 He nevertheless described certain steps he had taken that allegedly were intended to secure compliance with the regulations. Specifically, Tartaglia testified that he had served notices to quit on three tenants due to violations of the terms of their leases; copies of those notices were admitted into evidence. At the same time, Tartaglia professed ignorance when asked whether the defendant subsequently had commenced eviction proceedings in the Superior Court against those tenants. Tartaglia also testified that he had provided those tenants with instructions on how to apply for a special permit with the town.42
In addition, Tartaglia acknowledged that the lease agreements with those tenants, which were submitted into evidence at the contempt hearing, authorized the defendant to immediately revoke parking privileges and remove a tenant’s vehicles from the property at any time.43 Furthermore, the defendant submitted into evidence a copy of the letter that it sent to
The defendant nonetheless claims that, in light of the fact that Tartaglia sent eviction notices and special permit application instructions to certain tenants, the court improperly granted the plaintiffs’ motion for contempt. At its essence, the defendant’s claim is that it operated under a good faith belief that such efforts constituted compliance with the court’s order, which precludes a finding that it wilfully violated that order.
The court’s order plainly states that ‘‘the defendant must comply with the town’s regulations. If [the defendant] seeks to conduct such trucking and freight operations on the property, it must first obtain a special permit to do so. Hence, all trucking operations not associated with a specific tenant business use on the property or any trucking and freight operations being conducted without a special permit must immediately cease.’’ (Footnote omitted.) Like the order at issue in Gill v. Shimelman, 180 Conn. 568, 571, 430 A.2d 1292 (1980), the injunction here ‘‘ordered the company and its owners, not the tenants, to stop’’ the prohibited activity on its property. It is undisputed that the defendant neither applied for nor received a special permit to conduct trucking operations on its property.
The only question, then, is whether a good faith dispute as to the mandate of the court’s order precludes a finding of wilful contempt. See Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001). Whether a good faith dispute exists depends on the circumstances of the particular case and, thus, is a factual question ‘‘committed to the sound discretion of the trial court.’’ O’Brien v. O’Brien, supra, 326 Conn. 98. Our review of that factual determination is governed by the clearly erroneous standard of review; Bolat v. Bolat, supra, 182 Conn. App. 479–80; a ‘‘deferential standard’’ under which reviewing courts must not ‘‘examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported. . . . On appeal, we do not retry the facts . . . .’’ (Internal quotation marks omitted.) Marchesi v. Board of Selectmen, 328 Conn. 615, 643, 181 A.3d 531 (2018).
In finding that the defendant’s failure to comply with its order was not excused by its ‘‘disingenuous attempts to avoid compliance’’ and that a finding of contempt was therefore warranted, the court necessarily concluded that the defendant’s violation of the court order was wilful.45 On our review of the record before us, we decline to disturb that factual determination. Accordingly, the defendant’s claim must fail.
The appeal is dismissed with respect to the defendant’s challenge to the standing of LaFountain. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.