Town of Southington v. De Mello
Town of Southington v. De Mello
Opinion of the Court
This is an appeal from the trial court’s order finding the defendant in contempt. In essence, the defendant’s various claims of error are (1) that the trial court had no authority under the facts of this case
The following facts are not in dispute. This action has a lengthy history and arose from the construction of a second story addition to a one story dwelling at 685 Queen Street, Southington, owned by the defendant. The building is a single family residence located in Southington and is in an area designated as a “Business Zone B„” The building represents a nonconforming use under such zoning restrictions and, as such, may only be converted to a two family dwelling by a special exception permit from the town zoning board of appeals. Furthermore, a building permit must be obtained from the local building official prior to the construction of any structural alterations to the building. See General Statutes § 29-263; Southington Zoning Regs. § 14-02.1.
The defendant commenced construction of a second story addition to his building without obtaining a special exception or the proper building permits. On September 18,1975, the town building official ordered the defendant to cease work on the addition and posted a stop-work placard on the premises. Despite this directive, however, the defendant continued construction of the addition. By February 15, 1977, the addition appeared to be complete, and remained so until the time of trial.
On April 24,1976, the defendant was served with a complaint seeking an order from the court requiring the removal of the structure built in violation of the state building code and town zoning regulations. The complaint further requested a permanent injunction
On March 23,1978, the trial court rendered its decision for the plaintiffs and ordered that the defendant, his servants and agents, be permanently enjoined from using the second story addition for any purpose under a penalty of $10,000. The court denied the plaintiffs’ request to compel removal of the second story addition, as “it would border on economic waste to compel the removal of the offending addition.” The town building official thereafter moved the court to find the defendant in contempt for an alleged violation of the permanent injunction. By its decision dated December 10, 1984, the trial court found the defendant in contempt of the March 23, 1978 injunction. As part of this ruling, the court ordered, inter alia, that the defendant remove the exterior staircase to the second floor addition before December 14,1984. The defendant initially complied with this order, but thereafter reconstructed the staircase sometime prior to May 3, 1985. On that day, and subsequently on May 8, 14 and 17, 1985, the town building official inspected the premises and found that the staircase was again replaced by the defendant and attached to the second floor landing in violation of the court order of December 10, 1984.
On the basis of the result of these inspections, the plaintiffs, on May 17, 1985, again moved the court to find the defendant in contempt for violation of the court orders of March 23, 1978, and December 10, 1984. While this motion was pending, the building inspector on May 31,1985, found that the defendant had disconnected the staircase from the second floor landing and left it lying on the ground.
On July 8, 1985, after the conclusion of the hearing on the plaintiffs’ motion, the court made the following
Thereafter, the defendant’s motion to reargue was denied by the court on July 18, 1985, when it issued the following order: “Defendant is Found in Contempt-the judgment is reopened to do this. Defendant’s appeal period runs from today. Fine to be paid to the town of Southington.” The defendant then appealed to this court. Upon motion of the defendant, the court further articulated its decision and orders.
“A contempt adjudication may be reviewed to determine (1) whether the conduct for which the penalty was imposed could constitute a contempt, and (2) whether the punishment inflicted was authorized.” Mays v. Mays, 193 Conn. 261, 265, 476 A.2d 562 (1984). The defendant alleges that the acts complained of did not
The court’s original injunction that was issued on March 23, 1978, against “the defendant arid his servants and agents . . . [enjoining forever] any further use for any purpose of the said second-story addition” was in effect at the time of the building inspector’s four separate visits to the premises in May, 1985, before the plaintiffs initiated the final contempt proceedings. Additionally, the court’s supplementary orders of December 10,1984, prohibiting the use of the addition “for any purposes whatsoever, including storage,” and further specifically requiring the defendant to “remove the exterior staircase to the subject premises” under penalty of $1000 per day were also in force on the four visits of the building inspector. It was upon the violation in May, 1985, of the subsequent orders in particular that the court based its finding of contempt and imposition of penalty. The reconstruction of the stairway between December 14,1984, and May 3,1985, the presence of the staircase on May 3, 8,14 and 17,1985, and the use of the premises as evidenced by the presence of painting materials inside the second story addition amply support the court’s finding of contempt for violation of the orders of December 10, 1984.
The defendant claims that the court’s order of December 10,1984, requiring the removal of the exte
The defendant also argues that the mere existence of a paint can and paint brush in the apartment cannot reasonably be viewed as use of the addition. We disagree with the claim that such a conclusion drawn by the court was unreasonable. The court’s supplementary orders of December 10, 1984, specifically enjoined the defendant as follows: “(1) The Defendant is prohibited from using the subject premises at 685 Queen Street, Southington, Connecticut, for any purposes whatsoever, including storage; (2) The Defendant is to prohibit anyone else from using the premises; (3) The Defendant is to remove all items of furniture, appliances and other removable items; (4) The Defendant is to remove the exterior staircase to the subject premises; (5) The Defendant is ordered to comply with this order on or before Thursday, December 13,1984. The Defendant is ordered to permit inspection by the Town of Southington on December 14, 1984. There will be a $1,000 fine per day beginning December 14, 1984, and continuing at the rate of $1,000 per day until the Defendant complies with the above said Orders; (6) The Defendant is further ordered to pay to the Plaintiff costs of the Motion For Contempt and an Attorney’s
We find, therefore, that the trial court could reasonably have found from the evidence, as it did, that the defendant violated the orders of December 10, 1984, prohibiting the use of the addition and the maintenance of the stairway to it.
The next issue we address is whether the fines imposed were legally correct in view of the nature of the contempt found. It is undisputed that the defendant was found in civil contempt. See Board of Educations v. Shelton Education Assn., 173 Conn. 81, 85-86, 376 A.2d 1080 (1977); McTigue v. New London Education Assn., 164 Conn. 348, 352-55, 321 A.2d 462 (1973) (distinguishing civil contempt from criminal contempt). The trial court’s original permanent injunction issued on March 23,1978, provided for “a penalty of $10,000 against any further use for any purpose of the said second-story addition to the one-story, single-family dwelling at 685 Queen Street in the Town of Southington.” The court’s order of December 10,1984, provided for “a $1,000 fine per day beginning December 14, 1984, and continuing at the rate of $1,000 per day until the Defendant complies with the above said Orders,” including the removal of the exterior staircase to the second floor. On July 8, 1985, the court fined the defendant pursuant to the order of December 10,1984, after its finding of contempt. The court fined the defendant $1000 for each day of the four days, May 3, 8, 14 and 17, 1985, that the defendant was found to have been in violation of the injunction, as determined from the evidence of the building official’s visits to the
The defendant claims that the fines were improper in that they constituted punitive sanctions, which are only appropriate in criminal contempt holdings. See Board of Education v. Shelton Education Assn., supra, 86. “Sanctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. United States v. United Mine Workers, 330 U.S. 258, 303-304, 67 S. Ct. 677, 91 L. Ed. 884 [1947]. In civil contempt the fine must be conditional and coercive, and may not be absolute. Penfield Co. v. S.E.C., 330 U.S. 585, 595, 67 S. Ct. 918, 91 L. Ed. 1117 [1947].” Board of Education v. Shelton Education Assn., supra 85. As the defendant correctly points out, ordinarily one should be afforded an opportunity to obtain a full release from the fines imposed by compliance with the judicial decree. See Connolly v. Connolly, 191 Conn. 468, 482, 464 A.2d 837 (1983). What the defendant’s argument ignores, however, is his patience-straining prolongation of the controversy with the town building officials over the illegal addition to his building for a decade.
The construction began on or about September 16, 1975. The plaintiffs brought their injunction action on April 24,1976. In his trial brief filed in that action, the defendant admitted that “[o]n or about September 16,
In his brief, the defendant also argues that the imposition of the fine was beyond the scope of relief requested by the plaintiffs in their May 17,1985 motion for contempt. This claim is not supported by the record. The plaintiffs’ motion specifically requested that the defendant “be adjudged in contempt of this Court, [and] that he be fined accordingly . . . . ” In any event, the scope of penalty available to the court is not determined by the plaintiffs’ prayer for relief in its complaining motion, but by the coercive penalty prescribed in the underlying injunction alleged to have been violated.
There is no error.
In this opinion the other judges concurred.
In this articulation, the court ordered that the fine imposed was to be paid to the state. The defendant filed a motion for review of this articulation with this court in which he requested that the trial court be directed to order that the fine be paid to the town of Southington as originally ordered. The trial court was so directed and it amended its order accordingly. See Board of Education v. Shelton Education Assn., 173 Conn. 81, 85-86, 376 A.2d 1080 (1977), and McTigue v. New London Education Assn., 164 Conn. 348, 355, 321 A.2d 462 (1973), in which the court determined that a finding of contempt is deemed criminal where the fine is payable to the state rather than to the plaintiff.
Reference
- Full Case Name
- Town of Southington v. Antonio De Mello
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- 1 case
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- Published