Rocque v. Farricielli

• Decision Date: 01 June 2004
• Docket Number: (SC 17022).
• Citation: 848 A.2d 1206,269 Conn. 187
• Parties: ARTHUR J. ROCQUE, JR., COMMISSIONER OF ENVIRONMENTAL PROTECTION v. JOSEPH J. FARRICIELLI ET AL.
• Court: Connecticut Supreme Court

269 Conn. 187

848 A.2d 1206

ARTHUR J. ROCQUE, JR., COMMISSIONER OF ENVIRONMENTAL PROTECTION v. JOSEPH J. FARRICIELLI ET AL.

(SC 17022).

Supreme Court of Connecticut.

Argued February 11, 2004.

Officially released June 1, 2004.

Borden, Norcott, Katz, Palmer and Zarella, Js.

Maureen O'Doherty, with whom, on the brief, were Elizabeth C. Barton, Elin Swanson Katz and Clifford E. Nichols III, for the appellants (named defendant et al.).

Mark P. Kindall, assistant attorney general, with whom were Elizabeth P. Gilson, and, on the brief, Richard Blumenthal, attorney general, and Kimberly P. Massicotte and Matthew I. Levine, assistant attorneys general, for the appellees (plaintiff and intervening plaintiffs).

Opinion

BORDEN, J.

The plaintiff, the commissioner of environmental protection (commissioner), and the intervening plaintiffs, the town of Hamden (town) and its zoning enforcement officer, brought this action to enforce the terms of a consent order, a cease and desist order and a stipulated judgment, and to assess civil penalties for the violation of various environmental statutes and zoning ordinances against the named defendant, Joseph J. Farricielli.¹ The defendant appeals² from the judgment of the trial court finding him in violation of his obligations under the consent order with the commissioner, and the cease and desist order and the stipulated judgment with the town, and requiring the defendant to comply with all terms of the consent order, the cease and desist order, and the stipulated judgment, as well as the various state and local laws that they enforce. The defendant challenges the trial court's order requiring him to pay civil penalties totaling more than $3.7 million, pursuant to General Statutes §§ 22a-226a and 22a-438 (a), for the operation of unpermitted solid waste disposal areas. The defendant claims that: (1) the trial court's judgment ordering him to comply with the consent order and the stipulated judgment violated his constitutionally protected due process rights; (2) the trial court abused its discretion in determining the amount owed in penalties; and (3) the trial court failed to perform its fact-finding role. We affirm the judgment of the trial court.

In this action, which was commenced on July 9, 1999, the commissioner filed a complaint, which subsequently was amended four times, against the defendant and his corporations alleging flagrant and persistent violations of General Statutes §§ 22a-44 (b), 22a-108, 22a-208a, 22a-208b, 22a-208c and 22a-430, concerning the operation of their unpermitted solid waste disposal areas. Specifically, the commissioner sought: an order from the trial court enforcing the terms of the commissioner's 1998 consent order with the defendant and his corporations, which was designed to end ongoing statutory violations; a temporary and permanent injunction requiring the defendant and his corporations to cease their illegal activities; and an order requiring the defendant and his corporations to pay civil penalties for each day of each alleged violation. The town and its zoning enforcement officer subsequently intervened as party plaintiffs in the action, and the plaintiffs filed a joint amended complaint seeking, in addition to all of the aforementioned remedies, enforcement of an existing cease and desist order and the stipulated judgment in effect between the town and the defendant and his corporations, which was designed to end ongoing violations of various zoning ordinances. A bench trial took place in September and October, 2000, and the trial court issued its memorandum of decision on September 21, 2001, ordering all of the forms of relief sought by the plaintiffs. This appeal followed.

The trial court found the following facts. The defendant and his corporations own four contiguous parcels of property, three of which are located in the town of Hamden and one in the town of North Haven. The parcels are bordered by the Quinnipiac River on the east and by State Street on the west. Tidal marshes abut the properties to the north and south, and two of the parcels contain ponds. One of the ponds, which is known as the "tire pond" because the defendant and his corporations used it for the unauthorized disposal of approximately 15 million used tires, is separated from the Quinnipiac River and adjoining marshlands by a narrow dike. Since the 1970s, the defendant and his corporations maintained various solid waste disposal operations on these properties, and, on occasion, leased the parcels to other businesses for similar uses. The defendant's corporations and his various tenants used the land for, among other things, the sorting, recycling, reduction and disposal of construction and demolition waste, pumice, used tires and other refuse. One tenant operated a landfill on one of the parcels, and the defendant and his corporations maintained offices and scales on another of the parcels.

Beginning as early as 1974, the plaintiffs in this case became concerned over the unauthorized and otherwise illegal activities of the defendant, his corporations and his tenants.³ Several attempts were made to bring the defendant, his corporations and tenants into compliance with state statutes and town ordinances, which, among other things, required the defendant and his corporations to secure the appropriate permits and to abide by their requirements. In December, 1995, the town obtained a temporary injunction against the defendant and his corporations, and it was on this order that the stipulated judgment involved in this case was based. In March, 1999, the town obtained a cease and desist order, which it also requested the court to enforce in the present case.

In February, 1998, the commissioner issued a consent order designed to go into effect on May 28, 1998, which was signed by the defendant on behalf of himself individually and on behalf of his corporations. Simply stated, the consent order required the defendant and his corporations to cease the operation of all unpermitted solid waste facilities and to remediate the tire pond. Their subsequent failure to comply adequately, or, in some cases, at all, with the terms of the consent order, along with the violation of the stipulated judgment and the cease and desist order obtained by the town, constitute the basis of the present case. Additional facts will be set forth as needed in our discussion of the defendant's claims.

Following a lengthy court trial and the filing of post-hearing briefs, the trial court found for the plaintiffs on all counts and ordered the defendant to comply with the terms of the consent order, the stipulated judgment, and the cease and desist order, and to pay civil penalties for his ongoing violations of state and local laws. The defendant subsequently filed motions for reargument and for a stay of the injunctions ordered by the court pending an appeal, both of which were denied. On appeal to this court, the defendant claims that: (1) the trial court violated his right to due process by ordering him to comply with the terms of the consent order and the stipulated judgment because the consent order and stipulated judgment were in conflict with one another, and because the trial court's judgment was in conflict with an order issued by a criminal court in relation to parallel criminal proceedings; (2) several statutes and regulations that the trial court found the defendant to have violated are unconstitutionally vague and arbitrarily enforced, and that, therefore, the court's order that the defendant pay penalties for their violation deprived the defendant of his due process rights; (3) the trial court failed to consider and make findings in calculating the amount of penalties for which the defendant was liable; and (4) the trial court's factual findings were not supported by the evidence and, therefore, do not provide an adequate basis for the court's conclusions of law. We disagree with all of the defendant's claims and proceed by addressing each in turn.

I

The defendant first claims that the trial court's order requiring him to comply with the terms of the consent order with the commissioner and the stipulated judgment with the town is improper because the consent order and stipulated judgment contain conflicting obligations and prohibitions, thereby rendering the trial court's judgment internally inconsistent, and that, moreover, the trial court's judgment is in conflict with the criminal court's ordered terms of release in a parallel criminal proceeding. Such conflicting orders, the defendant claims, violated his due process rights under the fourteenth amendment. We disagree.

The following additional facts are necessary for our resolution of these claims. The defendant became subject to the requirements of the stipulated judgment with the town in December, 1995, and, subsequently, he became subject to the requirements of the consent order with the commissioner in May, 1998. The present case arises from his failure to adhere to the terms of either the judgment or the consent order. The plaintiffs' final amended complaint was filed on March 22, 2000, and the trial in the present case began on September 26, 2000.

The defendant was arrested on October 26, 1999, and subsequently charged with fourteen counts of criminal conduct related to the properties and activities at issue in the present case. The defendant was released on bond, but was later found by the criminal court to have violated the terms of his release. As a result, the criminal court issued an order on June 27, 2000, modifying the terms of the defendant's release. Specifically, the criminal court ordered the defendant to "cease all activities at the site of `the tire pond,' including: receiving, disposing, processing or transporting any materials in connection with the property, pending the outcome of the charges in this case."⁴ (Emphasis in original.)

The trial court, on September 21, 2001, issued its decision in the...