Truskauskas v. Zoning Board of Appeals , 187 Conn. App. 150 ( 2019 )

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DON TRUSKAUSKAS v. ZONING BOARD OF APPEALS
OF THE TOWN OF HARWINTON
(AC 39999)
Alvord, Elgo and Bright, Js.
Syllabus
The plaintiff appealed to the trial court from two decisions by the defendant,
the Zoning Board of Appeals of the Town of Harwinton, ordering him to
cease and desist from the use of his residential property for commercial
purposes in violation of the town’s zoning regulations. Two owners of
property that abuts that of the plaintiff then intervened in both of the
plaintiff’s appeals, which were thereafter consolidated by the trial court.
The plaintiff, the intervenors and the zoning board then entered into a
stipulation, which became the judgment in each case and provided, inter
alia, that the plaintiff could not conduct commercial activities at his
residential property or use his dump truck there as part of his contracting
business or for other commercial purposes. The intervenors thereafter
moved for an order of contempt, claiming, inter alia, that the plaintiff
had violated certain provisions of the stipulated judgments by continuing
to conduct commercial activities at his residence and by failing to remove
certain commercial equipment from the property. The trial court granted
the motion for contempt, and the plaintiff appealed to this court, claiming
that the trial court erroneously interpreted the stipulation to encompass
a total prohibition against the use of his dump truck for any commercial
purposes, including those that occurred off of his property and, thus,
improperly found him in contempt. Held that the trial court’s finding
that the plaintiff was in contempt was not clearly erroneous, as the
record supported the court’s determination that the plaintiff wilfully
violated certain provisions of the stipulation that prohibited him from
conducting commercial activities at his residential property and using
his dump truck there as part of his contracting business or for other
commercial purposes: the plaintiff’s admission under oath that he used
the dump truck to haul heavy equipment at his residence to job sites
was a clear violation of the stipulation and was consistent with evidence
that included a log book, photographs and videos of the plaintiff’s activi-
ties, which had been compiled by the intervenors, that showed his use
of the dump truck to move equipment on and off of his property princi-
pally for commercial purposes, the plaintiff did not dispute the court’s
references to how many times the dump truck came to and went from
his property as evidence that it was being used commercially, and the
court found that he used his home address as his business address in
tax and secretary of the state filings, that he owned no other property
on which to store his commercial property, and that he had not removed
permanently from his property certain heavy equipment that he used
there; moreover, even if the court interpreted the stipulation too broadly,
the plaintiff agreed that it clearly prohibited him from using the dump
truck on the subject premises for his contracting business or for other
commercial purposes.
Argued October 23, 2018—officially released January 15, 2019
Procedural History
Appeals from the decisions by the defendant ordering
the plaintiff to cease and desist certain activities on
certain of his real property, brought to the Superior
Court in the judicial district of Litchfield, where the
court, Pickard, J., granted the motions filed by Jessica
Genovese et al. to intervene in both appeals; thereafter,
the appeals were consolidated, and the court, Danaher,
J., approved the parties’ stipulations for judgments in
both appeals and rendered judgments thereon; subse-
quently, the court, J. Moore, J., granted in part the
motion for contempt filed by the intervenors, and the
plaintiff filed a consolidated appeal with this court.
Affirmed.
Don Truskauskas, self-represented, the appellant
(plaintiff).
Thomas W. Mott, for the appellees (intervenors).
Opinion
BRIGHT, J. The plaintiff, Don Truskauskas, appeals
from the judgments of the trial court finding him in
contempt1 for violating the terms of a stipulated judg-
ment involving himself, the defendant, the Zoning Board
of Appeals of the Town of Harwinton (board), and the
intervenors, Ronald Genovese and Jessica Genovese,
who own property abutting that of the plaintiff.2 On
appeal, the plaintiff claims that the court improperly
interpreted the March 30, 2016 stipulated judgment and
found that he wilfully had violated the stipulated judg-
ment.3 We affirm the judgments of the trial court.
The following facts and procedural history, which
are ascertained from the record and the trial court’s
memorandum of decision, inform our review. The court
found: ‘‘[These cases] arose as [appeals] from orders
issued against the plaintiff by the [board]. On appeal,
the [board] confirmed that [the] plaintiff was using his
residential property for commercial use in violation
of the Harwinton Zoning Regulations [regulations]. To
resolve [these cases after the plaintiff appealed from
the board’s decisions to the Superior Court], the parties
entered into a joint stipulation. After [the court] con-
ducted a canvass of, inter alia, the plaintiff, the joint
stipulation was entered as a judgment of the court on
March 30, 2016.
‘‘The joint stipulation, now the judgment, provide[s],
in [relevant] part . . .
‘‘1. The plaintiff could not conduct any commercial
activities at his residential property, including activities
related to his contracting business, Autumn Con-
tracting, LLC. This provision, however, did not ‘apply
to . . . other activities as permitted by the [regula-
tions]’ [as set forth in paragraph 2 of the judgment].
‘‘2. The plaintiff’s 2000 Mack Dump Truck [(dump
truck)] could be parked overnight at his residence in
accordance with a previous [board] decision, and could
be used for farm or personal use, but this dump truck
could not be used for the plaintiff’s contracting business
or other commercial purposes [as set forth in paragraph
5 of the stipulated judgment].
‘‘3. The plaintiff was required permanently to remove
from his residential property all ‘equipment, tools, and/
or materials used for [the] plaintiff’s contracting busi-
ness or any other commercial activity . . . within
seven (7) calendar days after [the] stipulated judgment
is fully executed, and shall be maintained by [the] plain-
tiff off the subject premises.’ This provision did not
apply ‘to tools kept in the plaintiff’s pickup truck that
are used for his contracting business or other tools or
equipment as allowed by the [r]egulations’ [as set forth
in paragraph 3 of the stipulated judgment].
‘‘4. The plaintiff shall be able to use his residential
property as he wishes as long as he complies with the
stipulated judgment, ‘the [regulations], and other appli-
cable law’ [as set forth in paragraph 8 of the stipu-
lated judgment].
‘‘The judgment also permitted the plaintiff to conduct
farming operations on, and to maintain the farm equip-
ment specified in exhibit A at, his residential property.
This farm equipment was further depicted in photo-
graphs appended to the stipulated judgment.
‘‘The [intervenors] moved for an order of contempt,
arguing that the plaintiff has violated several aspects
of the [stipulated] judgment. Specifically, they claimed
that the plaintiff has violated (1) paragraph 2 by continu-
ing to conduct commercial activities at his residence,
(2) paragraph 3 by failing to remove commercial, nonex-
empted equipment from the residential property, and
(3) paragraphs 2 and 5 by regularly moving heavy equip-
ment in and out of his residential property.
‘‘The plaintiff denied that he had conducted, after
the judgment, commercial activities at his residence.
Moreover, the plaintiff claimed that he maintained cer-
tain heavy equipment at his residence so that he could
conduct permitted activities, namely, building a large
storage barn and a pool there. Specifically, the plaintiff
claimed that he, after the date of judgment, used heavy
equipment to bring fill to his residential property and
to smooth the fill to level the ground so that he could
construct the storage barn. Finally, the plaintiff argued
that some of the allegedly contemptuous activity was
otherwise allowed by the town [of Harwinton] (1) by
means of prior zoning rulings, or (2) because he under-
took such activity for his personal use.’’
Following a hearing, the court found that the plaintiff
wilfully had violated the stipulated judgment ‘‘by contin-
uing to conduct his commercial enterprise out of his
residential property and by using his [dump truck] for
commercial purposes.’’ Specifically, the court found
that the plaintiff was in contempt for violations of para-
graphs 2 and 5 of the stipulated judgment. This
appeal followed.
On appeal, the plaintiff claims in relevant part that
the court improperly interpreted paragraph 5 of the
March 30, 2016 stipulated judgment and improperly
found that he wilfully had violated the stipulated judg-
ment. We are not persuaded.
‘‘The court has an array of tools available to it to
enforce its orders, the most prominent being its con-
tempt power. Our law recognizes two broad types of
contempt: criminal and civil. . . . The two are distin-
guished by the type of penalty imposed. . . . A finding
of criminal contempt permits the trial court to punish
the violating party, usually by imposing an uncondi-
tional fine or a fixed term of imprisonment. . . . Crimi-
nal contempt penalties are punitive in nature and
employed against completed actions that defy the dig-
nity and authority of the court. . . . Civil contempt, by
contrast, is not punitive in nature but intended to coerce
future compliance with a court order, and the contem-
nor should be able to obtain release from the sanction
imposed by the court by compliance with the judicial
decree. . . . A civil contempt finding thus permits the
court to coerce compliance by imposing a conditional
penalty, often in the form of a fine or period of imprison-
ment, to be lifted if the noncompliant party chooses to
obey the court. . . .
‘‘To impose contempt penalties, whether criminal or
civil, the trial court must make a contempt finding, and
this requires the court to find that the offending party
wilfully violated the court’s order; failure to comply
with an order, alone, will not support a finding of con-
tempt. . . . Rather, to constitute contempt, a party’s
conduct must be wilful. . . . A good faith dispute or
legitimate misunderstanding about the mandates of an
order may well preclude a finding of wilfulness. . . .
Whether a party’s violation was wilful depends on the
circumstances of the particular case and, ultimately, is
a factual question committed to the sound discretion
of the trial court.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) O’Brien v. O’Brien,
326 Conn. 81, 97–98, 161 A.3d 1236 (2017).
‘‘Consistent with the foregoing, when we review such
a judgment, we first consider the threshold question of
whether the underlying order constituted a court order
that was sufficiently clear and unambiguous so as to
support a judgment of contempt. . . . This is a legal
inquiry subject to de novo review. . . . Second, if we
conclude that the underlying court order was suffi-
ciently clear and unambiguous, we must then determine
whether the trial court abused its discretion in issuing
. . . a judgment of contempt, which includes a review
of the trial court’s determination of whether the viola-
tion was wilful . . . .’’ (Citations omitted; internal quo-
tation marks omitted.) Gabriel v. Gabriel, 324 Conn.
324, 330–31, 152 A.3d 1230 (2016).
The plaintiff claims that the court misinterpreted
paragraph 5 of the stipulated judgment and improperly
found that he wilfully had violated paragraphs 2 and 5
of the stipulated judgment. The plaintiff argues that
paragraph 5 prohibits him from using his dump truck
for commercial purposes only on the premises, but
contains no prohibition against him using the dump
truck for commercial purposes off the premises. He
contends that the court erroneously interpreted para-
graph 5 to encompass a total prohibition against the
plaintiff’s use of the dump truck for any commercial
purposes, even those that occur off-site, and that this
misinterpretation is what led the court to find a violation
of both paragraphs 2 and 5 of the stipulated judgment.
We are not persuaded by this argument.
In this case, although the board held that the over-
night parking of the plaintiff’s dump truck was a non-
conforming use,4 it also found that the plaintiff was
operating a commercial business from his residential
property in violation of §§ 1.3.15 and 4.16 of the regu-
lations.7
After the plaintiff appealed to the Superior Court
from two separate but related decisions of the board,
the parties entered into the joint stipulation, which
became a judgment of the court. Paragraph 2 of that
judgment provides in relevant part: ‘‘The plaintiff will
not conduct any commercial activities at the subject
premises, including, but without limitation, and specifi-
cally any and all activities related to the plaintiff’s con-
tracting business . . . . The plaintiff will not conduct,
or allow to be conducted, any commercial activities
whatsoever, especially those related to his contracting
business on the subject premises.’’ Paragraph 5 of that
judgment provides: ‘‘The plaintiff’s 2000 [dump truck]
may be parked overnight at the subject premises as a
legal, nonconforming use in accordance with the
[board’s] decision and in compliance with the [regula-
tions] pertaining to nonconforming uses and restric-
tions on nonconforming uses; provided, however, said
vehicle shall not be utilized on the subject premises for
the plaintiff’s contracting business or other commercial
purposes, but may be used for farm or personal use on
the subject premises or elsewhere.’’
The court found that the plaintiff wilfully violated
these paragraphs of the stipulated judgment. In particu-
lar, on the basis of a log book, photographs and videos
of the plaintiff’s activities compiled by the intervenors,
the court found that the plaintiff was using his dump
truck to move equipment on and off of his property
principally for commercial, as opposed to personal or
farming, purposes. The court further relied on the plain-
tiff’s admission that he attached a trailer to the dump
truck to haul his pickup truck to various job sites, con-
firming that he was using the dump truck for commer-
cial purposes. Finally, the court found that the plaintiff
used his home address as his business address in tax
and secretary of the state filings, owned no other prop-
erty on which to store his commercial property and
had not removed permanently from his property various
pieces of heavy equipment, including the commercial
trailer he regularly attached to the dump truck to haul
his pickup truck or heavy equipment to and from the
property.
The court concluded that the previously discussed
facts proved that the plaintiff wilfully violated para-
graph 2 of the stipulated judgment because he ‘‘was
wilfully conducting commercial activities at his residen-
tial property . . . .’’ The court concluded that the plain-
tiff violated paragraph 5 of the stipulated judgment
because he ‘‘admitted under oath that he would attach
the trailer at his home to the [dump truck] and place
the white pickup truck on the trailer to drive to job
sites . . . .’’ (Emphasis added.) The court noted that
this admission was confirmed by the evidence submit-
ted by the intervenors.
The plaintiff claims that the court misinterpreted
paragraph 5 as prohibiting any commercial use of the
dump truck, even off-site, and that this misinterpreta-
tion led the court to conclude that he had violated the
two provisions of the stipulated judgment. We conclude
that even if we were to agree that the court interpreted
paragraph 5 too broadly, that paragraph, nonetheless,
clearly prohibits the plaintiff from using his dump truck
on the subject premises for his contracting business or
for other commercial purposes. The plaintiff, in fact,
agrees that paragraphs 2 and 5 prohibit him from engag-
ing in such activity at his residence. Considering that
explicit prohibition in the stipulated judgment, namely,
using the dump truck for his contracting business or
for other commercial purposes on his residential prop-
erty, we conclude that the court’s finding of contempt
was not clearly erroneous.
The court found in relevant part, and the record sup-
ports, that the plaintiff was using his dump truck for
his contracting business at his residence. In fact, the
plaintiff states in his brief that ‘‘[t]he court [made] sev-
eral references as to how many times the [dump] truck
is coming and going from the property as evidence that
it [is] being used commercially; the plaintiff did not
and does not dispute this fact.’’8 During oral argument
before this court, the plaintiff also admitted that, while
at his residential property, he repeatedly attached a
trailer to the dump truck, placed heavy equipment on
that trailer, and used the dump truck to haul that heavy
equipment to various job sites for use in his contracting
business. This, in and of itself, evinces use of the dump
truck, while on the plaintiff’s residential property, for
the plaintiff’s contracting business, which is a clear
violation of the stipulated judgment. The plaintiff’s
admission also is consistent with the evidence relied
on by the court. Accordingly, we conclude that the court
properly found the plaintiff in contempt.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The judgments of contempt were rendered in two companion cases,
Docket Nos. CV-XX-XXXXXXX-S and CV-XX-XXXXXXX-S, both bearing the same
case title and relating to the same parties. These cases were consolidated
by the Superior Court on May 4, 2015. Each case relates to a different
decision of the Zoning Board of Appeals of the Town of Harwinton, from
which the plaintiff appealed to the Superior Court. The same March 30,
2016 stipulated judgment was rendered in each case. This appeal is taken
from the court’s judgments of contempt for the plaintiff’s violation of the
stipulated judgments that had been rendered in each case. In this appeal,
because the cases were consolidated, for convenience and to avoid confu-
sion, we generally will refer to the stipulated judgments and the contempt
judgments in the singular.
2
Although all parties have appeared for purposes of this appeal, the
board notified this court that it would not file an appellate brief because it
concluded that the appeal did not pertain directly to it.
3
The plaintiff also claims that the court (1) improperly limited the use
of his dump truck, which the board had recognized as a nonconforming
use, and (2) improperly ‘‘coached’’ the intervenors at trial.
As to the first claim, the plaintiff argues that the board’s decision ‘‘clearly
state[d] [that] the [dump] truck [was a] legal nonconforming use. . . . The
court’s insistence that the [dump truck] not be used for commercial use off
the property constitutes an illegal taking from the plaintiff!’’ The plaintiff,
however, fails to set forth any law, legal analysis, or legal argument beyond
this bald assertion regarding a constitutional taking. Accordingly, this claim
is briefed inadequately and will not be addressed. See, e.g., Electrical Con-
tractors, Inc. v. Dept. of Education, 303 Conn. 402, 444 n.40, 35 A.3d 188(2012) (claims not mentioned or briefed beyond bare assertion, or that
consist of conclusory assertions with no mention of relevant authority, are
inadequately briefed).
As to the second claim, the entirety of the plaintiff’s briefing of this issue
is one paragraph long, containing a mere six lines of text, which fails to set
forth any law, legal analysis, or legal argument. Accordingly, we conclude
that this claim also is briefed inadequately. See id.Additionally, the plaintiff raises, for the first time on appeal, a claim that
the notice of violation and the cease and desist order that had been issued
by the board or the town zoning enforcement officer were invalid because
they did not list his wife, who jointly owns the property and the business.
Because the plaintiff entered into a stipulated judgment resolving the notice
of violation and the cease and desist order, the fact that his wife was not
listed on those documents is irrelevant to the plaintiff’s own violation of
the stipulated judgment to which he was a party.
4
Section 6.20 of the regulations prohibits, with certain exceptions, the
overnight parking of commercial vehicles weighing in excess of 19,500
pounds. In his appeals to the Superior Court, the plaintiff acknowledged
that his dump truck weighed in excess of 19,500 pounds.
Specifically, § 6.20 of the regulations provides: ‘‘Commercially operated
or commercially registered vehicles having a gross vehicle weight in excess
of 19,500 pounds or greater than two axles are not allowed to park or be
stored on private property in a residential zone overnight except when:
‘‘They are providing a service related to the property where they are
parked or kept overnight.
‘‘They are in conjunction with the need for an emergency repair, but only
on an occasional basis.
‘‘On-call vehicles (Municipal, Water Co., CL&P, Gas Co., Service Vans,
etc.) shall be exempt from this regulation. Farm vehicles, as listed as Code
4 with the Harwinton Assessor’s office, in conjunction with a farm are
also exempt.
‘‘In accordance with the above three exceptions the following shall apply:
‘‘One commercial vehicle shall be permitted per property.
‘‘The commercial vehicle must be operated only by owner of the vehicle
who derives his livelihood from the operation of the vehicle and not family
members or employees.
‘‘The number of trips permitted in a 24-hour period is six (6) which means
no more than three (3) round trips to the residential home where the vehicle
is permitted to be parked onsite.
‘‘Commercial vehicles cannot idle for more than 15 minutes.’’
5
Section 1.3.1 of the regulations provides in relevant part: ‘‘Any use which
is not specifically permitted in a zone is prohibited and any use that is not
specifically permitted in any zone is prohibited in the entire Town.’’
6
Section 4.1 of the regulations sets forth the permitted uses in residential
zones, and §§ 4.2 and 4.3 set forth the uses that are allowed by special permit.
Specifically, § 4.1 of the regulations provides in relevant part: ‘‘In the
residential zones (CR, TR, LH, LHA) buildings and land may be used and
buildings may be erected, altered or moved, to be used for the following
permitted uses:
‘‘a. Single family dwellings.
‘‘b. Agricultural and horticultural uses, provided only the slaughtering of
livestock and poultry raised on the premises shall be permitted.
‘‘c. Roadside stand for sale of farm produce provided that the produce
offered for sale is produced on the farm on which the stand is located.
‘‘d. Family Day Care Home where such use shall not change the residential
character of the lot or the neighborhood.’’
Sections 4.2 and 4.3 set forth the uses that are permitted by special permits,
which are not alleged to be applicable to the plaintiff’s situation.
7
The regulations also allow the use of residential property for conducting
personal business, but only if such use would not be noticed by others.
Specifically, § 6.19 of the regulations provides: ‘‘Nothing in these regula-
tions shall restrict the use of a private home for personal business by the
owner or occupant where there are no employees other than the occupants,
no signs indicating a non-residential use, no clients coming to the house
and a reasonable neighbor would not know that such an operation is tak-
ing place.’’
8
This admission alone supports the court’s conclusion that the plaintiff
violated paragraph 2 of the stipulated judgment. Paragraph 2 prohibits the
plaintiff from conducting ‘‘any commercial activities whatsoever’’ on the
subject premises. Clearly, moving equipment from the premises to commer-
cial job sites constitutes conducting commercial activities on the premises.
The plaintiff has not argued otherwise. In fact, his brief is devoid of any
mention of the language of paragraph 2.