Truskauskas v. Zoning Bd. of Appeals of the Town of Harwinton

187 Conn.App. 150

202 A.3d 440

Don TRUSKAUSKAS

v.ZONING BOARD OF APPEALS OF the TOWN OF HARWINTON

AC 39999

Appellate Court of Connecticut.

Argued October 23, 2018

Officially released January 15, 2019

Don Truskauskas, self-represented, the appellant (plaintiff).

Thomas W. Mott, New Milford, for the appellees (intervenors).

Alvord, Elgo and Bright, Js.

BRIGHT, J.

The plaintiff, Don Truskauskas, appeals from the judgments of the trial court finding him in contempt¹ for violating the terms of a stipulated judgment involving himself, the defendant, the Zoning Board of Appeals of the Town of Harwinton (board), and the intervenors, Ronald Genovese and Jessica Genovese, who own property abutting that of the plaintiff.² On appeal, the plaintiff claims that the court improperly interpreted the March 30, 2016 stipulated judgment and found that he wilfully had violated the stipulated judgment.³ We affirm the judgments of the trial court.

The following facts and procedural history, which are ascertained from the record and the trial court's memorandum of decision, inform our review. The court found: "[These cases] arose as [appeals] from orders issued against the plaintiff by the [board]. On appeal, the [board] confirmed that [the] plaintiff was using his residential property for commercial use in violation of the Harwinton Zoning Regulations [regulations]. To resolve [these cases after the plaintiff appealed from the board's decisions to the Superior Court], the parties entered into a joint stipulation. After [the court] conducted a canvass of, inter alia, the plaintiff, the joint stipulation was entered as a judgment of the court on March 30, 2016.

"The joint stipulation, now the judgment, provide[s], in [relevant] part ...

"1. The plaintiff could not conduct any commercial activities at his residential property, including activities related to his contracting business, Autumn Contracting, LLC. This provision, however, did not ‘apply to ... other activities as permitted by the [regulations]’ [as set forth in paragraph 2 of the judgment].

"2. The plaintiff's 2000 Mack Dump Truck [ (dump truck) ] could be parked overnight at his residence in accordance with a previous [board] decision, and could be used for farm or personal use, but this dump truck could not be used for the plaintiff's contracting business or other commercial purposes [as set forth in paragraph 5 of the stipulated judgment].

"3. The plaintiff was required permanently to remove from his residential property all ‘equipment, tools, and/ or materials used for [the] plaintiff's contracting business or any other commercial activity ... within seven (7) calendar days after [the] stipulated judgment is fully executed, and shall be maintained by [the] plaintiff off the subject premises.’ This provision did not apply ‘to tools kept in the plaintiff's pickup truck that are used for his contracting business or other tools or equipment as allowed by the [r]egulations’ [as set forth in paragraph 3 of the stipulated judgment].

"4. The plaintiff shall be able to use his residential property as he wishes as long as he complies with the stipulated judgment, ‘the [regulations], and other applicable law’ [as set forth in paragraph 8 of the stipulated judgment].

"The judgment also permitted the plaintiff to conduct farming operations on, and to maintain the farm equipment specified in exhibit A at, his residential property. This farm equipment was further depicted in photographs appended to the stipulated judgment.

"The [intervenors] moved for an order of contempt, arguing that the plaintiff has violated several aspects of the [stipulated] judgment. Specifically, they claimed that the plaintiff has violated (1) paragraph 2 by continuing to conduct commercial activities at his residence, (2) paragraph 3 by failing to remove commercial, nonexempted equipment from the residential property, and (3) paragraphs 2 and 5 by regularly moving heavy equipment in and out of his residential property.

"The plaintiff denied that he had conducted, after the judgment, commercial activities at his residence. Moreover, the plaintiff claimed that he maintained certain heavy equipment at his residence so that he could conduct permitted activities, namely, building a large storage barn and a pool there. Specifically, the plaintiff claimed that he, after the date of judgment, used heavy equipment to bring fill to his residential property and to smooth the fill to level the ground so that he could construct the storage barn. Finally, the plaintiff argued that some of the allegedly contemptuous activity was otherwise allowed by the town [of Harwinton] (1) by means of prior zoning rulings, or (2) because he undertook such activity for his personal use."

Following a hearing, the court found that the plaintiff wilfully had violated the stipulated judgment "by continuing to conduct his commercial enterprise out of his residential property and by using his [dump truck] for commercial purposes." Specifically, the court found that the plaintiff was in contempt for violations of paragraphs 2 and 5 of the stipulated judgment. This appeal followed.

On appeal, the plaintiff claims in relevant part that the court improperly interpreted paragraph 5 of the March 30, 2016 stipulated judgment and improperly found that he wilfully had violated the stipulated judgment. We are not persuaded.

"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.... The two are distinguished by the type of penalty imposed.... A finding of criminal contempt permits the trial court to punish the violating party, usually by imposing an unconditional fine or a fixed term of imprisonment.... Criminal contempt penalties are punitive in nature and employed against completed actions that defy the dignity and authority of the court.... Civil contempt, by contrast, 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....

"To impose contempt penalties, whether criminal or civil, 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.... A good faith dispute or legitimate misunderstanding about the mandates of an order may well preclude a finding of wilfulness.... 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." (Citations omitted; footnote omitted; internal quotation marks omitted.) O'Brien v. O'Brien , 326 Conn. 81, 97–98, 161 A.3d 1236 (2017).

"Consistent with the foregoing, when we review such a judgment, we first consider the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt.... This is a legal inquiry subject to de novo review.... Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing ... a judgment of contempt, which includes a review of the trial court's determination of whether the violation was wilful ...." (Citations omitted; internal quotation marks omitted.) Gabriel v. Gabriel , 324 Conn. 324, 330–31, 152 A.3d 1230 (2016).

The plaintiff claims that the court misinterpreted paragraph 5 of the stipulated judgment and improperly found that he wilfully had violated paragraphs 2 and 5 of the stipulated judgment. The plaintiff argues that paragraph 5 prohibits him from using his dump truck for commercial purposes only on the premises , but contains no prohibition against him using the dump truck for commercial purposes off the premises. He contends that the court erroneously interpreted paragraph 5 to encompass a total prohibition against the plaintiff's use of the dump truck for any commercial purposes, even those that occur off-site, and that this misinterpretation is what led the court to find a violation of both paragraphs 2 and 5 of the stipulated judgment. We are not persuaded by this argument.

In this case, although the board held that the overnight parking of the plaintiff's dump truck was a nonconforming use,⁴ it also found that the plaintiff was operating a commercial business from his residential property in violation of §§ 1.3.1⁵ and 4.1⁶ of the regulations.⁷

After the plaintiff appealed to the Superior Court from two separate but related decisions of the board, the parties entered into the joint stipulation, which became a judgment of the court. Paragraph 2 of that judgment provides in relevant part: "The plaintiff will not conduct any commercial activities at the subject premises, including, but without limitation, and specifically any and all activities related to the plaintiff's contracting business .... The plaintiff will not conduct, or allow to be conducted, any commercial activities whatsoever, especially those related to his contracting business on the subject premises." Paragraph 5 of that judgment provides: "The plaintiff's 2000 [dump truck] may be parked overnight at the subject premises as a legal, nonconforming use in accordance with the [board's] decision and in compliance with the [regulations] pertaining to nonconforming uses and restrictions on nonconforming uses; provided, however, said vehicle shall not be utilized on the...