Conservation Com.m'n of the Town of Fairfield v. Red 11, LLC.

• Decision Date: 29 May 2012
• Docket Number: No. 32720.,32720.
• Citation: 135 Conn.App. 765,43 A.3d 244
• Court: Connecticut Court of Appeals
• Parties: CONSERVATION COMMISSION OF the TOWN OF FAIRFIELD v. RED 11, LLC.

135 Conn.App. 765

43 A.3d 244

CONSERVATION COMMISSION OF the TOWN OF FAIRFIELD

v.RED 11, LLC.

No. 32720.

Appellate Court of Connecticut.

Argued Jan. 9, 2012.

Decided May 29, 2012.

J. Christopher Rooney, with whom, on the brief, was Anne D. Peterson, New Haven, for the appellant (defendant).

Edward V. O'Hanlan, with whom was Thomas J. Donlon, Stamford, for the appellee (intervening plaintiff Wilmington Trust Company).

LAVINE, ESPINOSA and FLYNN, Js.

LAVINE, J.

The principal issue in this appeal is whether the intervening plaintiff, Wilmington Trust Company (Wilmington), properly was awarded attorney's fees under General Statutes § 22a–44 (b) of the Inland Wetlands and Watercourses Act (wetlands act), which provides in relevant part that reasonable attorney's fees may be awarded to the “person which brought such action....” The defendant, Red 11, LLC, doing business as Twin Oak Farms, appeals from the judgment of the trial court awarding Wilmington attorney's fees.¹ On appeal, the defendant claims that the trial court (1) improperly concluded that § 22a–44 (b) authorizes the award of attorney's fees to Wilmington and (2) abused its discretion in awarding Wilmington $391,967.80 ² in attorney's fees. We conclude that under the circumstances of this case, Wilmington “brought the action” and, thus, properly was awarded attorney's fees. We also conclude that the amount of attorney's fees awarded was not an abuse of discretion. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal.³ On May 11, 2001, Salvatore K. DiNardo purchased an eighteen acre parcel of land (parcel) located at 1159 Redding Road in Fairfield. DiNardo subsequently conveyed title to the defendant, a limited liability company of which he is the managing member. In connection with an application for a proposed subdivision submitted by a previous owner of the parcel, the conservation commission of the town of Fairfield (commission) discovered that the parcel contained three distinct wetlands and watercourse areas.⁴ Shortly after the defendant obtained title to the parcel, it “began the systematic elimination of all ... the protected wetlands....”

Wilmington serves as trustee of the Henry D. Dupont III Marital Trust and, in that capacity, owns approximately 100 acres of land (property) downstream from the defendant's parcel. In 2002, a Wilmington property manager noticed intermittent flooding and sedimentation, which was eroding the creeks located on the property and damaging wooden bridges. Consequently, Wilmington had to close parts of the property to the public.⁵

On July 2, 2003, the commission issued a cease and desist order to the defendant, alleging that it had violated Fairfield regulations by filling, piping, draining and excavating regulated wetlands and watercourses without obtaining a permit. Red 11, LLC v. Conservation Commission, 117 Conn.App. 630, 635, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 67 (2009). The order also alleged that the defendant, contrary to an earlier agreement between the defendant and the commission, had denied the commission access to the parcel and, as a result, the commission was forced to observe the parcel from adjacent properties and by helicopter surveillance. Id. On August 7, 2003, Wilmington filed a petition, pursuant to General Statutes § 22a–19 (a) of the Connecticut Environmental Protection Act (CEPA), to intervene in the administrative proceedings regarding the order. The commission granted Wilmington's petition.

On June 16, 2004, the commission issued another cease and desist order alleging violations in addition to those listed in its previous order. Id., at 636, 980 A.2d 917. The commission again permitted Wilmington to intervene in the administrative proceedings regarding this order. The defendant appealed to the Superior Court from the cease and desist orders. Id., at 636–37, 980 A.2d 917. Wilmington also successfully intervened in the appeals.

On August 5, 2004, the commission filed a verified complaint seeking a temporary and permanent injunction prohibiting the defendant from undertaking further construction activities and engaging in further violations of regulations. Conservation Commission v. Red 11, LLC, 119 Conn.App. 377, 383, 987 A.2d 398, cert. denied, 295 Conn. 924, 991 A.2d 566 (2010). Twenty-one days later, on August 26, 2004, Wilmington filed a “Motion to Intervene as a Party–Plaintiff,” which stated that it sought to be “named a party-plaintiff” pursuant to Practice Book § 9–18. The motion additionally stated that Wilmington's “interest is particularly significant because of its status as a downstream property owner, which property has already been affected and will continue to be affected if [the defendant] is allowed to continue the predations that are the subject of this civil action”; that the controversy “cannot be heard in fairness to all interested parties, unless [Wilmington] is allowed to participate as a party-plaintiff”; that Practice Book § 9–18 “clearly gives the [c]ourt the discretion to bring into the case a party which has an interest that would be affected by the action”; and that “there will be no prejudice to [the defendant] by the fact that [Wilmington] has been joined as a party-plaintiff.” Wilmington also attached, as an exhibit to this motion, its petition to intervene in administrative proceedings pursuant to CEPA, filed on August 7, 2003. The defendant did not object to Wilmington's motion, and the trial court granted it on August 30, 2004.

On August 15, 2006, the commission and Wilmington jointly filed an amended complaint containing four counts. Conservation Commission v. Red 11, LLC, supra, 119 Conn.App. at 383, 987 A.2d 398. The first count was alleged by the commission alone and repeated the allegations contained in the original complaint, namely, that the defendant had been conducting activities on the parcel that disrupted and destroyed wetlands and continually violated the cease and desist orders. The remaining counts were alleged by Wilmington alone. Id. Count two alleged violations of the wetlands act, count three alleged violations of CEPA and count four alleged a common-law trespass claim. ⁶Id., at 383 n. 1, 987 A.2d 398.

The trial court consolidated the appeals from the cease and desist orders with the injunction action and issued four memoranda of decision on April 4, 2007. The court dismissed the defendant's administrative appeals, concluding that “regulated activities, such as the filling, draining and piping of the wetlands and watercourses had occurred on the [parcel] without a required permit” and that “these activities did not fall within the farming exception set forth in [General Statutes] § 22a–40 and § 4.1 of the Fairfield regulations.” ⁷Red 11, LLC v. Conservation Commission, supra, 117 Conn.App. at 637, 980 A.2d 917. Regarding the injunction action, the court “imposed a temporary injunction prohibiting the defendant from any further construction activities at 1159 Redding Road and from any further violations of the General Statutes or the Fairfield regulations. It also ordered that a subsequent evidentiary hearing would be held to determine the restoration of the site, civil penalties, costs, fees, expenses and attorney's fees.” Conservation Commission v. Red 11, LLC, supra, 119 Conn.App. at 383–84, 987 A.2d 398.

On July 25, 2008, following a hearing, the court issued another memorandum of decision imposing a permanent injunction, ordering restoration of the parcel and awarding civil penalties of $25,000.⁸Id., at 384, 987 A.2d 398. The court additionally stated that it would award the commission and Wilmington reasonable attorney's fees under § 22a–44 (b) of the wetlands act in an amount to be determined following a hearing. Id. On July 24, 2009, Wilmington filed a motion for attorney's fees and costs seeking $426,437.79 along with an affidavit from its lead counsel explaining the amount requested. The court held hearings on March 26, 2010, and April 30, 2010. On August 27, 2010, the court issued a detailed memorandum of decision awarding Wilmington the $426,437.79 in fees and costs it requested under § 22a–44 (b), of which $391,967.80 are attorney's fees.⁹ See footnote 2 of this opinion. This appeal followed.

I

The defendant first claims that the court improperly awarded Wilmington attorney's fees under the wetlands act because (1) Wilmington intervened pursuant to CEPA, not the wetlands act, and (2) the commission, rather than Wilmington, filed the original complaint, and, thus, Wilmington was not the entity that “brought such action” under § 22a–44 (b). We disagree.

A

Preliminarily, we address whether Wilmington intervened in the injunction action pursuant to CEPA. The defendant argues that Wilmington intervened pursuant to § 22a–19 (a) of CEPA and, as such, any attorney's fees award should have been under General Statutes § 22a–18 (e). The defendant contends that because the court awarded Wilmington attorney's fees under the wetlands act, the award was in error. Wilmington argues that it did not intervene pursuant to CEPA; rather, as demonstrated by the text of the motion, it intervened “as a party-plaintiff” pursuant to Practice Book § 9–18.¹⁰ Wilmington explains that it merely attached, as an exhibit, its earlier petition to intervene in administrative proceedings pursuant to CEPA “[a]s an indication of its long-standing interest in the dispute over [the defendant's] destruction of wetlands....” The defendant's argument is not persuasive.

“It is the substance of a motion ... that governs its outcome....” State v. Taylor, 91 Conn.App. 788, 792, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). Therefore, in order to determinethe effect of the court's granting of Wilmington's motion to intervene, we briefly explain the differences between full intervention pursuant to Practice Book § 9–18 and limited intervention...