Przekopski v. Zoning Bd. of Appeals of the Town of Colchester
| Decision Date | 06 September 2011 |
| Docket Number | AC 29867,AC 29775 |
| Court | Connecticut Court of Appeals |
| Parties | LEONARD PRZEKOPSKI, JR, v. ZONING BOARD OF APPEALS OF THE TOWN OF COLCHESTER |
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Robinson, Alvord and Schaller, Js.
(Appeal from Superior Court, judicial district of New
London, Hon. Seymour L. Hendel, judge trial referee.)
Ronald F. Ochsner, for the appellant (plaintiff).
Beth Bryan Critton, with whom was, David F. Sherwood, for the appellees (defendants).
The plaintiff, Leonard Przekopski, Jr., appeals from the judgments of the trial court in connection with a cease and desist order pertaining to certain of his real property. On appeal, the plaintiff claims that the court improperly (1) granted a motion for contempt filed by the defendant zoning board of appeals of the town of Colchester1 for his alleged violation of a stipulated judgment, (2) found that he had violated a court order and (3) granted a motion for sanctions and attorney's fees filed by the defendant. We agree with the plaintiff only as to his claim that the court improperly granted the motion for sanctions and attorney's fees. Accordingly, we reverse in part and affirm in part the judgments of the trial court.
Our review of the record reveals the following relevant facts and procedural history. The plaintiff and his wife, Karen Przekopski, are the owners of a parcel of real property located at 36 Pine Road in Colchester (property). The property is used for a variety of industrial activities, including the excavation and processing of sand and gravel, soil manufacturing, recycling of earth materials2 and the bulk storage of manure.3
On or about May 8, 2006, the zoning enforcement officer for the town of Colchester issued a cease and desist order to the plaintiff directing him to cease and desist ''any and all excavation, recycling activities, and bulk storage of manure'' on the property until a zoning permit for such activities had been obtained. The cease and desist order stated that these activities were being conducted in violation of the zoning regulations for the town of Colchester (zoning regulations). In response, on June 1, 2006, the plaintiff appealed the issuance of the cease and desist order to the defendant, claiming that he had a right, pursuant to both the zoning regulations and the laws of Connecticut, to conduct these activities on the property. A public hearing was held on the plaintiff's appeal, and the defendant voted to uphold the issuance of the cease and desist order on August 15, 2006.
The plaintiff appealed from that decision to the Superior Court, claiming that the defendant had improperly sustained the cease and desist order. In addition, on November 1, 2006, the plaintiff filed a motion pursuant to General Statutes § 8-8 (h)4 to stay enforcement of the cease and desist order. On February 20 and 21, 2007, the court conducted a hearing on the motion. On February 21, 2007, before the court could issue a ruling on the motion, the parties entered into a stipulated agreement regarding the property. Pursuant to the stipulation, no later than April 23, 2007, the plaintiff was required to file an application for a special exception from the zoning regulations for the excavation of sand and gravel, and an application for a variance from thezoning regulations for the processing and recycling of earth materials. In the interim, the plaintiff was permitted to continue, but not intensify, his current activities on the property.
On April 25, 2007, the defendant filed a motion for contempt, alleging, inter alia, that the plaintiff had failed to submit the applications by the April 23, 2007 deadline. Ahearing was held on May 7, 2007, and the court granted the defendant's contempt motion from the bench, concluding that it was uncontested that the plaintiff had not made the necessary filings. The court thereafter imposed a fine of $1000 per day beginning on May 7, 2007, and continuing until the applications were filed. It suspended the imposition of the fines, however, because it found that the delay in filing was due in part to causes beyond the plaintiff's control. The court then extended the filing deadline for the applications to June 23, 2007, and provided that the fines would be abated if the filings were completed by that date.
On June 22, 2007, the plaintiff and his wife submitted a special exception application (application) to the planning and zoning commission of the town of Colchester (commission). The application requested a special exception from the zoning regulations to conduct an excavation operation and to process and recycle earth materials. On August 21, 2007, while the application was pending before the commission, the plaintiff filed a motion for a stipulated judgment, requesting that the court render judgment in favor of the defendant and in accordance with the stipulation. On September 13, 2007, the court granted the motion. On November 28, 2007, the commission denied the application on the ground that it did not meet the standards for a special exception.5 Thereafter, the plaintiff continued excavation and recycling activities on the property.
On February 27, 2008, the defendant filed a second motion for contempt. The defendant claimed that the stipulation required the plaintiff ''to cease any and all unapproved activities [on the property] effective the date of denial of . . . [the] application(s).'' The defendant argued that the plaintiff was in violation of the stipulation because of ''his failure to cease all unpermit-ted activities on the . . . property, in accordance with the [s]tipulation and the [j]udgment of [the] [c]ourt.'' The defendant requested that the court hold the plaintiff in civil contempt and that it further order the plaintiff ''to cease immediately all unpermitted excavation, earth materials recycling and processing and other unpermit-ted activities on the . . . property . . . .''
The court held a hearing on the second contempt motion. After hearing arguments from counsel, the court, ruling from the bench, found ''the plaintiff to be in contempt of the agreement, [and] the court's . . . prior order, for the plaintiff's failure to cease all unpermitted activities on the . . . property . . . in accor-dance with the stipulate[ed] judgment of this court.'' Thereafter, by order dated February 27, 2008, the court ordered ''the plaintiff, or anyone working on the plaintiff's behalf, [to] cease all nonpermitted excavation [of] earth material[s], recycling and processing and any other nonpermitted activities on the . . . property.'' The order provided that ''[i]f the plaintiff [did] not cease such operations [by March 17, 2008], a fine of $1000 per day [would] be ordered . . . .''6 By order dated March 19, 2008, the court extended the date by which the plaintiff had to cease the operations proscribed by the February 27, 2008 order to March 26, 2008. It provided that a fine of $1000 per day would be ''retroactive beginning March 19, 2008,'' if such operations did not cease.
On April 8, 2008, the defendant filed a motion for judgment, requesting, inter alia, that the court render judgment in favor of the defendant on the basis of the plaintiff's continuing violations of the court's orders. The court conducted a hearing on the defendant's motion on April 16, 2008. At the hearing, the plaintiff testified that he owned Przekopski Sand, Gravel and Trucking (business) with his wife, that the business conducted sand and gravel excavation operations on the property and that he shared any profits generated by the business with his wife. The plaintiff admitted that he had conducted sand and gravel excavation operations on the property prior to March 26, 2008, but claimed that he had not conducted any such operations on the property or used any of the business' equipment for such purposes since that date. According to the plaintiff, his wife had been handling the daily operations of the business since March 26, 2008, because he had voluntarily relinquished complete control of the business to her following the court's March 19, 2008 order.
On April 16, 2008, the court issued an order providing that ''[j]udgment shall enter in the amount of $28,000, which represents [twenty-eight] days of violation of the court's order.'' It further provided that ''[t]he fine for violation of the court's order will remain at $1000 per day.'' This appeal followed. Additional facts and procedural history will be set forth as necessary.
First, the plaintiff claims that the court improperly granted the defendant's second motion for contempt. Spec...
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