Opinion
LNDCV166065738S
08-18-2017
Town of Wethersfield et al. v. PR Arrow, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
On April 20, 2017, this court issued its decision in this case concerning a zoning enforcement action seeking injunctive and other relief brought pursuant to General Statutes § 8-12. The defendant was alleged to have violated § 5.2.H.5 of Wethersfield's zoning regulations by conducting an illegal trucking and freight operation on the property and by allowing the parking and storage of commercial vehicles on the property that are not associated with any of the businesses operating on the property. The facts are more fully set forth in that decision. Ultimately, this court granted an injunction and ordered that the defendant must comply with the town's zoning regulations. Specifically, the court found, " [i]f [the defendant] 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." (Footnote omitted.)
Section 5.2.H.5 only allows " trucking or freight operations with complete visual screening of equipment and materials" as a use after special permit approval by the commission.
The defendant filed an appeal on May 3, 2017. There is no stay effect. See General Statutes § § 52-477, 52-476; Practice Book § 61-11; see also Tomasso Bros., v. October Twenty-Four, Inc., 230 Conn. 641, 655, 646 A.2d 133 (1994) (" [u]nder both statutes, a party must apply for a stay and the trial court must make a determination whether to stay the judgment").
On May 4, 2017, the plaintiffs filed a motion for contempt alleging that the defendant was violating this court's order. On May 11, 2017, the defendant filed an objection to the motion for contempt and this court conducted a hearing on the motion on July 6, 2017. Three witnesses testified: the coplaintiff, Justin LaFountain, the zoning enforcement officer for Wethersfield; the defendant's manager and one percent owner, John Tartaglia; and the operator of a business at the property, Vitaly Melnick.
At the hearing, the defendant moved, for the first time, to dismiss the plaintiffs' motion for contempt arguing that the plaintiffs failed to have it personally served. The defendant cites Alldred v. Alldred, 132 Conn.App. 430, 31 A.3d 1185 (2011), appeal dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). In Alldred, the court held that an " attempt to serve the plaintiff by mailing copies of the postjudgment contempt motions to the plaintiff's counsel did not confer personal jurisdiction over the plaintiff on the court." Id., 438. Alldred is not controlling, however, as it involved Practice Book § 25-27, which governs motions for contempt in family cases, and does not apply here.
LaFountain testified that he conducted five inspections of the property since this court's April decision and he submitted a number of photographs showing box trucks on the property. Exhibits (exhs.) 1-21. Melnick testified that he has one truck on the property and that there are up to twenty other trucks on the property. Tartaglia did not dispute this testimony; rather, he testified concerning the rental of the Budget trucks. He further stated that he assisted three individuals in pursuing a special permit and that he had notices to quit served on June 22, 2017, on three truck operators to vacate the premises by June 28, 2017. Exhs. G-1.
Tartaglia testified and introduced evidence that he gave consent for the special permit applications for three of his lessees and supported those applications. Exhs. B, C, J. He stated that he did not attend the hearing, in part, because of his relationship with the commission members.
The special permits were apparently denied on June 20, 2017, in part because substantial infrastructure improvements, including paving, were required under the zoning regulations. Tartaglia testified that the defendant did not have the financial resources to perform the required paving improvements and that the defendant did not apply for the special permit. While it is possible that someone other than an owner might pursue the special permits; see Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 32, 54 A.2d 675 (1947) (" [z]oning is concerned with the use of specific existing buildings and lots, and not primarily with their ownership"); the defendant did not introduce the special permit applications or have the three truck owners testify about their financial commitment to the infrastructure improvements. The record does not indicate that the three applications would satisfy the zoning regulations.
As of this date, no appeals have been filed. See General Statutes § 8-8(b) (" [t]he appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes").
" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Internal quotation marks omitted.) Edmond v. Foisey, 111 Conn.App. 760, 769, 961 A.2d 441 (2008). " The violation of any court order qualifies for criminal contempt sanctions. Where, however, the dispute is between private litigants and the purpose for judicial intervention is remedial, then the contempt is civil, and any sanctions imposed by the judicial authority shall be coercive and nonpunitive, including fines, to ensure compliance and compensate the complainant for losses . . ." Practice Book § 1-21A.
In the present case, the testimony and the evidence is clear that the subject violations still exist. Indeed, many of the newest pictures of the property submitted into evidence by the plaintiffs show the same type of--or perhaps the exact same--trucks shown in pictures submitted into evidence at trial. Exhs. 1-21. Tartaglia does not dispute that the trucks are still parked on the property. Instead, he attempts to separate his responsibilities from that of his tenants and to individualize the truck owners as the offending violators. These disingenuous attempts to avoid compliance were and are rejected. The defendant has two choices: it can either conduct its operations in compliance with the zoning regulations--which includes its rental policies as to truck and freight operators such as Andrey Markiv; Igor Stefak, and Melnick--or cease its operations that violate the regulations. Despite Tartaglia's protestations, the defendant has the ability to comply.
Accordingly, the plaintiffs' motion for contempt is granted. The orders entered on April 20, 2017, are still in effect. While this matter is on appeal, this court has deferred the issue of monetary penalties. The evidence from this proceeding will be included in that evaluation.
Additionally, the Superior Court " may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." Commissioner of Environmental Protection v. Connecticut Bldg. Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993). In the present case, the defendant clearly waived any objection. First, to the extent Practice Book § 10-30 applies, the defendant raised this alleged issue of lack of personal jurisdiction at oral argument and did not file a motion to dismiss within thirty days of the filing of the motion for contempt. See Practice Book § 10-30(b); see also Pitchell v. Hartford, 247 Conn. 422, 433-34, 722 A.2d 797 (1999) (" [p]ursuant to the rules of practice, a waiver of personal jurisdiction defects occurs if a timely motion to dismiss is not filed"). Moreover, the defendant was required to file an accompanying memorandum of law with its motion to dismiss. See Practice Book § 10-30(c). Second, in its May 11, 2017 objection to the motion for contempt, the defendant did not raise the issue of personal jurisdiction thereby waiving such claim pursuant to Practice Book § 10-32. Section 10-32 provides that " [a]ny claim of lack of jurisdiction over the person or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." Having objected to the motion for contempt without claiming a lack of personal jurisdiction, appearing in court to defend against the motion, and failing to comply with the rules of practice concerning a motion to dismiss, the defendant's oral motion to dismiss, supplemented by its July 19, 2017 memorandum of law in response to a request by the court, is denied.