First Light Hydro Generating Co. v. Stewart

First Light Hydro Generating Company v. Allan Stewart et al.

No. DBDCV156017097S

Superior Court of Connecticut, Judicial District of Danbury, Danbury

December 3, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Brazzel-Massaro, Barbara, J.

MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT

Brazzel-Massaro, J.

INTRODUCTION

On February 8, 2019 the plaintiff filed a motion for contempt with this court based upon the Defendants’ failure to remove the structures in accordance with the May 1, 2018 Supreme Court decision affirming the March 8, 2016 permanent injunction granted by the trial court, Truglia, J.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff is First Light Ct Housatonic LLC (First Light Housatonic) who is the successor to First Light Hydro Generating Company.^[1] The plaintiff is the owner of land comprising the bed and shoreline of the lake which covers an area of approximately 5650 acres in New Milford, Danbury, New Fairfield, Sherman and Brookfield. The plaintiff is a utility company that operates hydroelectric power generation facilities in Connecticut pursuant to licenses. The defendants, Allan Stewart and Donatella Arpaia, own property at 24 Sunset Drive, New Fairfield. The plaintiff’s property is contiguous to the southerly border of the property owned by the plaintiff.

Prior to the initiation of this legal action in 2015, the plaintiff issued permits dated December 6, 2013 and May 13, 2014, to the defendants for improvements to be built partially or entirely on the plaintiff’s land. The permits issued "expressly prohibit[ed] ‘any excavation, flooding, grading or filling except as-described’ in the permits, and ‘construction of any structures, fixtures or improvements except as described’ in the permits." In July 2014, the plaintiff notified the defendants that they were performing work in violation of the permits and asked them to cease the work with some further surveys to be completed. The defendants agreed to cease all further work but they did not do so and continued to construct in violation of the permits. The plaintiff filed this action seeking injunctive relief which was granted after three days of testimony and evidence before the trial court. At the conclusion of the trial, the court filed a Memorandum of Decision dated March 8, 2016, which made findings of fact including that the "plaintiff has sustained damages by virtue of the substantial permanent unauthorized improvements constructed by the defendants on the plaintiff’s land." (Memorandum of Decision p. 13.)

In addressing the appropriate remedy, the trial court ordered that the defendants "immediately remove" the portions of the structures that are located partially or entirely on the plaintiff’s property. (Memorandum of Decision p. 14.)

The defendants appealed the trial court decision and on May 1, 2018, the Supreme Court issued a decision affirming the trial court.^[2] The Supreme Court affirmed the finding that the defendants were trespassing on the plaintiff’s property and agreed with counsel for both parties that the injunctive relief as to the lower patio should be clarified to allow the removal of the pavers and rebuild, if they elect to do so, as a gravel or peastone sitting area, and to require removal of the portions of the abutting wall that exceeds the size which was allowed by the permit previously issued to the defendants. Other than these clarifications, the Supreme Court affirmed the trial court’s findings and orders to remove immediately the illegal structures as outlined in the trial court decision.

On May 1, 2018, the plaintiff immediately forwarded correspondence to the defendants requesting a plan and schedule for accomplishing the corrective work in accordance with the permanent mandatory injunction to be submitted by May 11, 2018.^[3] (Plaintiff’s Exh. 1.) The plaintiff informed the defendants that they would issue a permit to commence the work.

As a result of the decision of the Supreme Court, which affirmed the trial court, the defendants were to remove and/or rectify the following: 1) the upper patio; 2) the masonry fireplace and hearth; 3) the masonry retaining wall abutting the upper patio area on the Candlewood Lake side of the patio; 4) the masonry retaining wall abutting the upper patio and fireplace labeled as "wall" on the Plaintiff’s exhibit 7; 5) the masonry steps to the upper patio area and the masonry steps abutting the retaining wall and upper patio area; 6) the lower patio (with the proviso that it could be rebuilt with gravel); 7) the masonry retaining wall abutting the lower patio area (with the allowance of a length of thirty feet); 8) all conduit, utility lines, electric fixtures and lines, high and low voltage lighting, drains and irrigation equipment; 9) the block wall to the west northwest of the house; and 10) the hot tub. (Plaintiff’s Exh. 4.)

The Supreme Court did not find that the injunction and order for removal was incorrect and other than the minor correction to the property of the lower patio and retaining wall the court concluded that the injunctive relief was proper. The judgment was affirmed with the only exception being the authorization to build the lower patio and abutting retaining wall with a length restriction.

After the correspondence from the plaintiff to enforce the injunctive relief originally ordered over two years prior, counsel for the defendants replied that he contacted his clients and also questioned whether there was a need for permits for the work on the plaintiff’s property and if so should they apply for Inland Wetlands permits. (Plaintiff’s Exh. 2.) The plaintiff responded on May 9, 2018, indicating that activity within First Light property is preempted but the plaintiff had already informed New Fairfield of the Supreme Court decision. The plaintiff again requested the plan or schedule for corrective action. (Plaintiff’s Exh. 3.)

On May 14, 2018, the defendants sent an email which informed the plaintiff’s employees that Abigail Adams had been retained and "met with Allen Stewart ... to prepare a new design that takes into consideration the 440 line and reworks existing patios, wall, etc." (Defendants’ Exh. A.) The plaintiff responded asking again for the plan that was to be submitted on May 11, 2018.

In accordance with the email of June 1, 2018, a new plan was addressed by the plaintiff in which it stated that the defendants’ plan was found "wholly unacceptable because it does not comply with the Court’s judgment." (Plaintiff’s Exh. 4.) On August 10, 2018, a permit was issued which set forth work to be completed by October 31, 2018, within the Permitted Area described as within the Federal Energy Regulatory Commission’s Housatonic River Project (HRP) Number P-2576 Boundary (the Project). (Plaintiff’s Exh. 5.) This permit also contained a section entitled "Site Specific Notes and Conditions," which stated that, "[W]ithin 2 weeks from the Effective date of the Permit, the Permittee(s) shall identify a contractor and submit the contractor’s contact information and the required insurance certificates."^[4] Id. On September 21, 2018, the defendants sent a letter expressing for the first time some concerns regarding the Inland Wetlands Commission for work above the 440’ contour. (Plaintiff’s Exh. 8.) Nothing was done and the time to complete the work in accordance with the permit expired. Based upon the testimony, there was no work initiated during the time of this permit to comply with the judgment of the trial court as affirmed by the Supreme Court.

In November 2018, the defendants determined that there was a need for an Inland Wetlands approval for the work to be completed.^[5] The defendants submitted an application in November 2018 and thereafter had two months of continuances at their request before the matter was heard and granted on March 25, 2019. (Plaintiff’s Exh. 14.)

The defendants waited until they had this additional approval before obtaining the services of a contractor to perform the work which was ordered by the court. On June 13, 2019, a contractor was identified and the parties entered into a second permit on June 26, 2019. (Plaintiff’s Exh. 14.) The permit sets a completion date of September 30, 2019.

Work began at some time in July in accordance with the Weekly Progress Reports submitted by the plaintiff. (Plaintiff’s Exh. 17.) To date, the work is not complete.

On February 8, 2019, the plaintiff filed a Motion for Contempt because the defendants had failed to comply with the final judgment of the court ordering the defendants to remove immediately certain structures that were constructed on the property of First Light. The parties entered into discussions after the filing of the motion and the court scheduled a hearing on April 15, 2019. The hearing was continued in accordance with the agreement of the parties until September 16, 2019.^[6] On September 16, 2019, the parties appeared on the motion. However, prior to this hearing date the plaintiff filed a motion to substitute as plaintiff First Light CT Housatonic, LLC, as a result of a change in ownership of the utility. The defendants objected to the motion to substitute arguing it was a subject matter objection and the court could not continue the hearing until a decision was rendered. Although the defendants objected to the substitution without filing a written objection or any notice to the court, the court permitted a short period of time to provide a memorandum of law in support of their position. On September 30, 2019 the court heard argument and overruled the objection. A hearing was scheduled for October 7, and thereafter continued to a date chosen by the defendants’ counsel to allow the defendants to appear and testify. The...