Town of Wethersfield v. PR Arrow, LLC

187 Conn.App. 604

203 A.3d 645

TOWN OF WETHERSFIELD et al.

v.PR ARROW, LLC

AC 40407

Appellate Court of Connecticut.

Argued October 15, 2018

Officially released February 5, 2019

Kevin J. Burns, West Hartford, for the appellant (defendant).

Thomas A. Plotkin, with whom, on the brief, was John W. Bradley, Jr., Hartford, for the appellees (plaintiffs).

Keller, Elgo and Sullivan, Js.

ELGO, J.

In this zoning enforcement action, the defendant, PR Arrow, LLC, appeals from the judgment of the trial court granting permanent injunctive relief in favor of the plaintiffs, the town of Wethersfield (town) and its zoning enforcement officer, Justin LaFountain.¹ On appeal, the defendant claims that (1) the court lacked subject matter jurisdiction in multiple respects, (2) the court improperly applied the doctrine of exhaustion of administrative remedies, (3) the zoning regulation in question is void for vagueness, (4) the court improperly interpreted that regulation, (5) the court improperly granted the permanent injunction, (6) the injunction lacked sufficient clarity and definiteness, (7) the court abused its discretion in imposing daily fines pursuant to General Statutes § 8-12, (8) the court abused its discretion in awarding costs and attorney's fees pursuant to § 8-12 without making a finding that it wilfully violated the zoning regulations and (9) the court improperly found the defendant in contempt. We dismiss as moot the defendant's jurisdictional challenge with respect to the standing of LaFountain. We affirm the judgment of the trial court in all other respects.

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 §§ 5.2 and 5.3, respectively, of the Wethersfield Zoning Regulations (regulations).

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"); Wethersfield Zoning Regs., art. X, § 10.3.A.1 ("[t]hese Regulations shall be enforced by the Zoning Enforcement Official as the Commission's duly authorized agent for enforcement of these Regulations"). By letter dated November 18, 2015, LaFountain issued a cease and desist order (order) to the defendant regarding certain activities on the property. That order stated in relevant part: "This letter is to inform you that [the property] is in violation of the [regulations]. Section 5.2.H.5 ... states that ‘trucking or freight operations with complete visual screening of equipment and materials’ requires a Special Permit from the [commission]. Other commercial vehicles on the property must be accessory to uses within the offices and industrial bays. You are hereby ordered to Cease and Desist allowing trucking or freight operations to be permitted on the property. You may either appeal this order to the Zoning Board of Appeals or comply within [fifteen] days of receipt.... If you wish to maintain the trucking or freight operations, a Special Permit would be required from the [commission]. Failure to comply with this order will leave this Department no alternative but to begin issuing [$ 100] Citations for every day the property is in violation.... In addition to any fines or penalties imposed therein, the applicable section(s) of the [regulations] may be enforced by injunctive procedure in the Superior Court."² (Emphasis in original.)

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 hearing on the matter, the defendant formally withdrew its appeal of the order by letter dated January 22, 2016.

When activities allegedly continued on the property in contravention of the order, the plaintiffs commenced the present action pursuant to § 8-12.⁴ The basis of that action was twofold in nature. First, the plaintiffs alleged that the defendant violated § 5.2.H.5 of the regulations due to "ongoing ‘trucking or freight operations’ at the [p]roperty without the required special permit ...."⁵

Second, the plaintiffs alleged that the defendant violated the regulations by permitting the parking and storage of commercial vehicles on the property that "were not accessory to any use by a tenant."⁶ With respect to those two grounds, the plaintiffs specifically alleged that "the current violations of the [r]egulations at the [p]roperty include: [a] an illegal trucking and freight operation; [b] the parking and storage of several commercial vehicles that are not associated with any business operating at this [p]roperty; [c] the frequent ingress and egress of tractor trailers, truck tractors, semitrailers, and/or other large commercial vehicles to-from the [p]roperty, including such vehicles that are not associated with any tenant; [d] the illegal parking of tractor trailers, truck tractors, semitrailers, and/or other large commercial vehicles at the [p]roperty for compensation." The plaintiffs further alleged that those violations constituted "a public nuisance due to the presence of and traffic created by tractor trailers, truck tractors, semitrailers, and/or other large commercial vehicles, and the emission or odors and noise." In their prayer for relief, the plaintiffs requested, inter alia, injunctive relief ordering the defendant to cease and desist from the aforementioned activities, a civil penalty of $ 2500, a civil fine to be imposed on a daily basis "until the violations are remedied," and an award of costs and attorney's fees pursuant to § 8-12.

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 in their entirety. Days later, the case was transferred by order of the court to the land use litigation docket in the judicial district of Hartford pursuant to General Statutes § 51-347b (a). On June 27, 2016, the plaintiffs filed a certificate of closed pleadings.

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.

In his testimony, LaFountain confirmed that the order was issued in response to the presence of those trucks on the property. LaFountain testified that he had received multiple complaints about that issue, including a written complaint from a neighbor who resided at an abutting condominium complex.⁹ Significantly, Tartaglia admitted in his testimony that "there were trucks parking on the property ... that were not tenants of physical space in the building, but would park trucks in the back, licensed commercial vehicles. Commercial vehicles by definition would include any tractor-trailer or object that has a commercial plate in the state of Connecticut. I do not deny this." In its memorandum decision, the court found that Tartaglia had "devised [a] ‘tag’ system ... to allow nonbuilding tenants to store trucks on [the] property."¹⁰ (Citation omitted.)

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