Gelinas v. West Hartford

• Citation: 65 Conn. App. 265,782 A.2d 679
• Decision Date: 28 August 2001
• Docket Number: (AC 13774)
• Court: Appellate Court of Connecticut
• Parties: WILLIAM P. GELINAS v. TOWN OF WEST HARTFORD ET AL.

65 Conn. App. 265

782 A.2d 679

WILLIAM P. GELINAS v. TOWN OF WEST HARTFORD ET AL.

(AC 13774)

Appellate Court of Connecticut.

Argued January 17, 2001.

Officially released August 28, 2001.

Foti, Mihalakos and Healey, JS. Timothy J. Fitzgerald, with whom, on the brief, were Paul S. Levin and Mark S. Rosenblit, for the appellant (plaintiff).

Elizabeth Dee Bailey, assistant corporation counsel, for the appellee (defendant).

Opinion

HEALEY, J.

In this case involving the propriety and kinds of fines that may be imposed under General Statutes § 8-12,¹ the plaintiff, William P. Gelinas, appeals from the judgment of the trial court, rendered after the case was remanded by our Supreme Court,² ordering him to pay daily civil fines for the violation of that statute. On appeal, the plaintiff claims that the trial court improperly (1) imposed a daily fine on him in violation of § 8-12, (2) imposed on him a fine in excess of $2500 in violation of § 8-12, (3) computed the time frame for which the daily fine was assessed,³ (4) awarded costs and attorney's fees to the defendant town of West Hartford (town)⁴ pursuant to § 8-12,⁵ (5) denied his motion of October 14, 1994, to set aside the judgment and (6) violated the constitutional prohibition against double jeopardy by imposing on him a fine in excess of $108,000. We affirm the judgment of the trial court.

This case has its genesis in an action that the plaintiff instituted in 1990, seeking a writ of mandamus ordering the town to issue a certificate of zoning approval for his revised site plan in connection with work at premises he owns at 119-121 Park Road, West Hartford.

By way of background to the mandamus action, we note the following facts. Since 1986, the plaintiff has owned a two story building at 119-121 Park Road. Those premises formerly had been owned by a fraternal organization, and had been used for large indoor meetings and events. During the early part of 1987, the plaintiff made alterations to the building, including the removal of a first floor assembly hall stage, and the construction of two floors of offices in place of the stage and a part of the assembly hall. After the plaintiff completed the modifications, on June 24, 1987, he applied for a building permit to make changes to the interior of the building. Town officials, believing that the proposed changes constituted a change in use, inspected the property and found that much of the work for which the permit was sought already had been completed, and was in violation of the town's zoning ordinances and the building code. Town officials thereupon posted "do not occupy" and "stop work"⁶ orders at the site, and notified the plaintiff that he was in violation of the zoning and building codes, and that he was required to obtain site plan approval, permits and inspections. The date of that order was June 29, 1987.

A prosecution for the building code violations was initiated in the Housing Session of the Superior Court. The Housing Session ordered the plaintiff to return the building to its prior condition. The plaintiff later was arrested on the building code violations and, on January 21, 1988, the Housing Session, after accepting his plea of nolo contendere, fined him $500 and granted him accelerated rehabilitation.⁷

The revised site plan was not approved, denied or modified, and in June, 1990, the plaintiff and Morton Weiner,⁸ who owned property adjacent to that of the plaintiff, brought the mandamus action against the town.⁹ In the mandamus action, the plaintiff and Weiner sought a certificate of approval for their February 29, 1988 joint revised site plan application pursuant to General Statutes § 8-3 (g)¹⁰ and General Statutes (Rev. to 1987) § 8-7d,¹¹ which provides that a site plan is presumed to be approved unless a decision to deny or modify is rendered within sixty-five days after receipt of the application. Both the plaintiff and Weiner were denied any relief by the trial court.

The town, however, had filed a counterclaim in the mandamus action. It alleged that the plaintiff had altered the building without first obtaining site plan approval and building permits, that he had utilized the building without obtaining a certificate of occupancy and that he had failed to comply with orders to discontinue or remedy the zoning violations. Pursuant to § 8-12, the town sought injunctive relief, the imposition of certain fines, and the payment of attorney's fees and costs.¹² The court ordered¹³ much of the relief sought by the town. Thereafter, the plaintiff and Weiner appealed to the Supreme Court. The town filed a cross appeal. In his appeal, the plaintiff claimed, inter alia, that the trial court improperly (1) rejected his claim that the town's failure to render a decision on the site plan application resulted in automatic approval of that application pursuant to § 8-3 (g) and § 8-7d, (2) concluded that he and Weiner were not entitled to a writ of mandamus directing the town to grant their site plan application, (3) issued an injunction against him pursuant to § 8-12 in favor of the town on its counterclaim, (4) found that the evidence was sufficient to support its decision to grant the injunctive relief, pursuant to § 8-12, as requested by the town, (5) failed to conclude that the town was estopped from seeking an injunction and (6) abused its discretion by refusing to open the judgment in which it assessed a daily fine of $100 from June 29, 1987, to June 15, 1990, for the "wilful violation" of zoning ordinances pursuant to § 8-12.

The Supreme Court rejected all of the plaintiffs claims with the exception of the issue that he raised concerning the daily fine of $100 for "wilful violation." As to that claim, which was resolved in favor of the plaintiff, the Supreme Court reversed in part the judgment of the trial court and "remand[ed] the case to that court with direction to vacate the daily fine of $100 for `wilful offenses' and to impose such civil penalties pursuant to § 8-12 as the trial court may deem appropriate in the proper exercise of its discretion." Gelinas v. West Hartford, 225 Conn. 575, 593, 626 A.2d 259 (1993).¹⁴ In its cross appeal, the town claimed that the trial court improperly denied its request for an injunction against the use change in the basement of the plaintiffs building that was in violation of § 177-39 of the West Hartford Code. The Supreme Court agreed with the town.

In articulating its ultimate disposition of each appeal in its May 25, 1993— decision, the Supreme Court stated: "We conclude, therefore, that the trial court abused its discretion by refusing to render judgment entitling the town to injunctive relief from the unauthorized business use of the basement. Accordingly, we reverse the judgment of the trial court on this issue and remand the case to the trial court with direction to render judgment for the town consistent with this opinion. We leave it to the discretion of the trial court to fashion the scope of the injunctive relief to which the town is entitled.

"The judgment is affirmed in part and reversed in part with respect to the plaintiffs' appeal, the judgment is reversed with respect to the town's appeal, and the case is remanded for further proceedings in accordance with this opinion." Id., 596.

After the release of the Supreme Court's decision in Gelinas, the town filed a motion dated November 13, 1993, in the trial court for judgment consistent with the Supreme Court's opinion. A hearing was held on that motion on June 16, 1994.¹⁵ At the outset of that hearing, the court noted that subsequent to the remand in Gelinas, the parties had entered into a stipulation.¹⁶ As the court pointed out, the only matter left unresolved by the stipulation was "the question of daily fines [which were covered in paragraph three of the stipulation.]"¹⁷

In its original orders of May 31, 1991, paragraph four provided the following: "The [plaintiff] shall pay $100 per day from June 29, 1987, to June 15, 1990, as a fine for his unlawful alteration of the structure without zoning and building permits at 119 Park Road and for his unlawful maintenance and use of the rooms in the first floor for offices without authorization, permits or a certificate of occupancy; such fine shall be for the wilful violation of the zoning regulations pursuant to § 8-12 of the General Statutes from June 29, 1987, when the [plaintiff] was ordered to obtain site plan approval for any changed uses in order to apply for and be issued building permits pursuant to § 177-6 [of the West Hartford Code], to June 15, 1990, when he filed an application for an order in the nature of a mandamus."

After the court heard the parties on the matter, it opined that the "$2500 cap" proviso in § 8-12 "does not apply in this situation." It also concluded that the Supreme Court in Gelinas did not conclude that the time period that it had used for the original imposition of the daily fine in 1991, i.e., from June 29, 1987, to June 15, 1990, was improper. The court stated that "to follow the judgment of the Supreme Court ... the court is ... going to vacate the $100 per day fine for wilful violation." It then proceeded to alter the 1991 order by deleting the phrase, "for the wilful violation of the zoning regulations." Proceeding, the court ordered that the word "civil" be inserted before the word "fine"¹⁸ and stated that "[s]uch civil fine shall be pursuant to § 8-12 of the General Statutes." Thereafter, the plaintiff filed his motion dated October 14, 1994, to set aside the court's judgment of June 16, 1994, on the ground that it violated the double jeopardy clause of the fifth amendment to the United States constitution and the excessive fine clause of the eighth amendment to the United States constitution. The court denied the motion. This appeal followed.

I

The plaintiff first claims that the court improperly imposed a daily fine on him in violation of § 8-12. Specifically, the plaintiff...