Town of Newtown v. Gaydosh

211 Conn.App. 186

272 A.3d 206

TOWN OF NEWTOWN et al.

v.Gary GAYDOSH et al.

AC 43209

Appellate Court of Connecticut.

Argued October 18, 2021

Officially released March 15, 2022

David V. DeRosa, Naugatuck, for the appellants (defendants).

Alexander Copp, Danbury, with whom, on the brief, was Joseph G. Walsh, Danbury, for the appellees (plaintiffs).

Elgo, Alexander and Suarez, Js.

SUAREZ, J.

The defendants, Gary Gaydosh, Barbara Gaydosh, and Justin Gaydosh, appeal from the judgment of the trial court granting the motion for contempt filed by the plaintiffs, the town of Newtown (town) and its zoning enforcement officer, Gary Frenette,¹ for the defendants’ alleged violation of a stipulated judgment entered into by the plaintiffs and the defendants and rendered by the court to remedy zoning violations on the defendants’ property. On appeal, the defendants claim that (1) the court's finding that they had violated the terms of the judgment was not supported by the evidence and (2) the court abused its discretion with respect to the sanctions imposed as a result of its finding of contempt. We affirm the judgment of the trial court.

The following facts, which are ascertained from the record and the trial court's memorandum of decision, and procedural history are relevant to this appeal. At all relevant times, the defendants owned real property known as 90A Huntington Road in Newtown (property). In July, 2009, the plaintiffs brought a zoning enforcement action against the defendants, alleging that the defendants were committing various zoning violations on the property. The plaintiffs alleged that the defendants had violated §§ 8.08.210, 8.03.722, and 1.06.1000

of the Newtown Zoning Regulations (regulations). Specifically, the plaintiffs alleged that the defendants had (1) "conducted, or allowed to [be] conducted, the excavation, processing, addition and removal of soil, rock, or other earth material on the property," in violation of § 8.08.210;² (2) "caused or allowed dump trucks and other vehicles not permitted in the residential zone to be parked or stored on the property," in violation of § 8.03.722;³ and (3) "caused or allowed the dissemination of noise or vibration beyond the property lot," in violation of § 1.06.1000.⁴ The plaintiffs sought temporary and permanent injunctive relief to compel the defendants to comply with the relevant provisions of the regulations, as well as fines and attorney's fees pursuant to General Statutes § 8-12.⁵

To resolve the complaint, the parties entered into a joint stipulation. The written stipulation prohibited the defendants from "bring[ing] onto [the] property from other locations, or hav[ing] or allow[ing] others to bring onto [the property] any soil, sand, gravel, clay, rock, or earth material ...." (Citation omitted.) It also prohibited the defendants from "bring[ing] or hav[ing] delivered any type of manure to [the] property unless used as fertilizer for new greenhouses or for growing crops." Under the stipulation, the defendants also were not permitted to "sell or have taken from [the] property by truck, or in any way remove from [the property] any soil, sand, gravel, clay, rock, or other earth material ...." (Citation omitted.)

The stipulation, however, did permit the defendants to compost and sell material in accordance with a Department of Environmental Protection Comprehensive Nutrient Management Plan. Such a plan subsequently was prepared in April, 2011, for the Department of Environmental Protection by Joseph E. Polulech.⁶ The stipulation also permitted the defendants to conduct farming activities, but it specifically prohibited "the processing, stockpiling, or sale of any materials not associated with farming other than composted waste produced directly as a byproduct of the housing of horses and livestock" on the property. The stipulation further prohibited "the mixing, screening, crushing,

blending, or combining of materials other than those allowed for composting operations in an approved Comprehensive Nutrient Management Plan ...." Finally, with respect to vehicles and machinery, the stipulation provided that "[t]he storage or parking of any piece of construction equipment, dump truck and other heavy truck of a type not ordinarily used as a means of transportation for people is not permitted on ... this property, in this residential zone .... The use of operable motor vehicles normally used on farms for farming activities is permitted .... The defendants will not store or park any piece of construction equipment, dump truck and other heavy truck of a type not ordinarily used as a means of transportation for people on ... this property unless used on the farm for farming activities after April 15, 2011." (Citations omitted.) On March 4, 2011, the court, Maronich, J. , rendered judgment in accordance with the parties’ stipulation.

On June 8, 2011, the plaintiffs filed a motion for contempt against the defendants, alleging that the defendants had violated the terms of the stipulated judgment. On March 2, 2012, following several days of hearings, the trial court, Wenzel, J. , issued a memorandum of decision granting the motion for contempt, in which it found that the defendants wilfully had violated the judgment. To remedy the violation, the court ordered the defendants to maintain a written record of the entry and departure of trucks from the property and to present the record to the town on a monthly basis. The court also awarded costs and attorney's fees to the plaintiffs.

On December 3, 2013, the plaintiffs filed another motion for contempt, alleging that the defendants had continued to violate the judgment. Following a hearing, the trial court, Roraback, J. , ordered that the parties conduct periodic meetings at the property to monitor

the defendants’ compliance with the judgment. The parties held these meetings for eighteen months, during which time the town was satisfied that the defendants were in compliance with the judgment. On October 5, 2016, the plaintiffs withdrew the contempt motion.

In 2018, the plaintiffs became concerned that the defendants had resumed conducting prohibited activities on the property. In response to several neighbors’ complaints about noise and excess truck traffic on the property, the plaintiffs flew a drone over the property to take aerial photographs on January 4, 2019. According to the plaintiffs, the photographs suggested that the defendants were once again using the property for commercial mining and construction operations in violation of the judgment.

Relying on the photographs, the plaintiffs filed another motion for contempt against the defendants on January 15, 2019, the resolution of which is the subject of the present appeal. In the motion, the plaintiffs specifically alleged that the defendants had violated the judgment by (1) conducting "[e]xtensive screening and processing of various materials"; (2) conducting "[e]xtensive stockpiling of wood, stumps, asphalt pieces and millings"; (3) engaging in "[n]umerous and extensive excavation creating ponds"; (4) stockpiling various materials associated with mining; (5) using the property as a landfill; and (6) storing construction equipment and heavy trucks on the property. The plaintiffs sought an order to correct the violations, as well as fines and attorney's fees.

On February 11, 2019, a hearing on the motion for contempt was held before the trial court, Krumeich, J . Although notice of the hearing was duly provided to the defendants, they did not appear at the hearing. During the hearing, the plaintiffs presented the testimony of Steve Maguire, a land use enforcement officer for the town. Maguire testified that, during the months that

preceded the hearing, he had received multiple complaints concerning the property. Maguire further testified that, after receiving several complaints, he used a drone that was borrowed from the Newtown Police Department to take aerial photographs of the property to determine the nature of the activities that were being conducted on the property. The photographs were entered into evidence at the hearing.

On the basis of the photographs, Maguire determined that a large portion of the property was being used for a commercial mining operation. During his testimony, Maguire described the operation to include material processing, the sale and transport of gravel, sand, and soil, and the dumping and burying of material. Maguire explained that the photographs depict "large earth excavations" as well as areas where stumps and debris have been buried. He also noted that the photographs show "extensive sorting machines which process out stone, sand, [and] soil" and multiple excavators. He characterized the property as a "large scale commercial operation which is in no way a farming operation including composting of manure." Maguire testified that the farming operation that he observed in previous inspections was too small to necessitate the equipment that was being used on the property in January, 2019, as depicted in the drone photographs. With respect to composting, Maguire testified that the windrows⁷ that were previously on the property had been replaced with the excavation and sorting area. The plaintiffs asked the court to find the defendants in contempt and to impose daily fines and issue an order requiring the defendants to submit to a physical inspection of the property.

Following the hearing, but before the court reached a decision, the defendants moved to reargue and open

the evidence on the ground that their counsel had mistakenly thought that the hearing was scheduled for a different date. On February 20, 2019, the court granted the motion and opened the evidence to permit the defendants to cross-examine Maguire and to present evidence. Accordingly, the court scheduled an additional hearing to occur on April 8, 2019.

Prior to that hearing, on February 28, 2019, the plaintiffs filed a motion to inspect the defendants’ property. The court...