South Windsor v. Lanata ( 2021 )

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TOWN OF SOUTH WINDSOR ET AL. v.
KRISTIN LANATA ET AL.
(AC 42973)
Alvord, Prescott and DiPentima, Js.
Syllabus
The plaintiffs, the town of South Windsor and its zoning enforcement officer,
sought injunctive relief and fines against the defendant, who operated
a salvage business out of her residential property in the town. The
plaintiffs alleged that the defendant violated the town’s blight ordinance
and zoning regulations in storing materials on her property that created
a junkyard. Prior to the commencement of the action, the enforcement
officer had issued several notices to the defendant, beginning in 2014,
which alleged that the defendant that was in violation of the town’s
regulations. In December, 2016, a fire occurred at the property and,
thereafter, an arson investigation commenced, which ultimately dis-
proved a claim of arson. On February 24, 2017, the defendant was notified
again that she was in violation of the blight ordinance, was directed to
remove the debris, and was informed that she had the right to appeal.
The defendant also received, concurrently, a cease and desist order
identifying a zoning violation and she was directed to cease the deposi-
tion of discarded material on the property. The notice further stated
that she had the right to appeal and that should she fail to address the
issues, the defendant would be subject to further statutory (§ 8-12)
proceedings and penalties. The defendant did not appeal from either
notice. The plaintiffs commenced an action in effort to compel the
defendant to comply with the notices. The trial court determined that
the defendant was operating a salvage business on her property in
violation of the town’s zoning regulations and the blight ordinance. The
court also found that the defendant had wilfully violated the town’s
zoning regulations since at least February 24, 2017, the date of the cease
and desist order, and imposed a fine pursuant to § 8-12 of $175 per day,
running from February 24, 2017, to the date of the court’s decision, for
a total sum of $125,000, and the defendant appealed to this court. Held:
1. The defendant’s unpreserved claim that the February 24, 2017 cease and
desist order premised on her alleged zoning violation was unconstitution-
ally vague could not be reviewed pursuant to the bypass doctrine
because, even if the defendant had presented her claim to the trial court,
that court would have lacked jurisdiction over it on the basis that she
failed to exhaust her administrative remedies; the defendant did not
appeal the February 24, 2017 cease and desist order to the zoning board
of appeals, she did not argue that she was prevented from doing so,
and she did not raise before the trial court any constitutional defect in
the regulations whose enforcement was at issue; rather, the defendant’s
challenge was to the actions of the enforcement officer in issuing the
cease and desist order, which challenge would be beyond the narrow
purview of the constitutional exception to the exhaustion requirement.
2. The trial court abused its discretion in imposing fines beginning on Febru-
ary 24, 2017, the date of the cease and desist order for a zoning violation,
for the time period during which the defendant was under orders not
to disturb the property: the record contains undisputed evidence, and
the plaintiffs’ counsel acknowledged, that the defendant was prohibited
for some time following February 24, 2017, by her insurer and the police
from removing items from the property, as the property was under an
arson investigation at the time the February 24, 2017 order was issued;
furthermore, the daily fine of $175, imposed on the basis of the trial
court’s determination that the defendant wilfully had violated the town’s
zoning regulations, was improper, as the record was devoid of any
suggestion, and the plaintiffs did not contend, that the defendant had
been convicted of any offense in a criminal proceeding, as a criminal
prosecution was a predicate for the imposition of fines for a wilful
violation pursuant to § 8-12, and the court was not authorized under
§ 8-12 to impose the same penalties in a civil proceeding that it could
impose in a criminal proceeding.
Argued November 10, 2020—officially released March 9, 2021
Procedural History
Action seeking, inter alia, an injunction ordering the
defendants to take certain corrective actions to bring
their real property into compliance with town ordi-
nances and zoning regulations, and for other relief,
brought to the Superior Court in the judicial district
of Hartford, where the defendant Michael Lanata was
defaulted for failure to plead; thereafter, the matter was
tried to the court, Moukawsher, J.; judgment for the
plaintiffs, from which the named defendant appealed
to this court. Reversed in part; new trial.
Edward C. Taiman, for the appellant (named
defendant).
Richard D. Carella, with whom was Adam B. Marks,
for the appellees (plaintiffs).
Opinion
ALVORD, J. The defendant Kristin Lanata1 appeals
from the judgment of the trial court rendered in favor
of the plaintiffs, the town of South Windsor (town)
and its zoning enforcement officer, Pamela Oliva.2 On
appeal, the defendant claims (1) that a February 24, 2017
cease and desist order was unconstitutionally vague as
to the conduct to which it applied, (2) that the court
erred in failing to conclude that she was justified in not
complying with the February 24, 2017 cease and desist
order on the basis that she had been instructed by both
the police and her insurer not to touch or remove any
of the personal property located in the backyard of her
property, and (3) that the court misapplied General
Statutes § 8-12 in assessing a fine for wilful violation
of the town’s zoning regulations.3 We conclude that the
court abused its discretion in imposing a fine for a
zoning violation that covered a time period during
which she was under orders not to disturb the property.4
Accordingly, we reverse the decision of the trial court
as to count two of the plaintiffs’ complaint, which
alleges the zoning violation, and remand for a new trial
on that count.5
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claims. The
defendant, who operates a business in which she is
hired by lenders to clean personal property out of
homes on which they have foreclosed, is the owner of
property located at 460 Miller Road in South Windsor
(property). For years, the defendant used the property
to sort, store, and dispose of salvage she obtained in
her business. By letter dated May 2, 2014, Oliva notified
the defendant that she had investigated a recent com-
plaint regarding the maintenance of the property. Spe-
cifically, she drove by the property and ‘‘observed a
large amount of debris in the front and side yard, within
the public view.’’ The letter stated that this condition
met the definition of blight under the blight ordinance.6
The letter directed the defendant to remove the accumu-
lated debris by May 19, 2014, ‘‘to avoid [an] enforcement
action and potential daily penalties of [$100]’’ by Oliva’s
office. The letter stated that ‘‘[y]ou have the right to
appeal this action to a Hearing Officer within ten (10)
days after service of this notice on you, in accordance
with the Anti-Blight Ordinance of the [town].’’ The
defendant did not appeal.7 In October, 2014, the defen-
dant installed a fence that mostly, but not entirely, hid
the piles of salvage and equipment located on the right
side of the property. Around the side of the fence, how-
ever, the items could still be viewed.
Also in October, 2014, Oliva mailed to the defendant
a cease and desist order that identified a zoning viola-
tion on the property. Specifically, the order identified
the zoning violation as ‘‘[s]torage of discarded or sec-
ond-hand material, creating a junkyard in violation of
Table 3.1.1A Permitted Uses in Residential Zones.’’8 The
order stated that the corrective action required was to
‘‘[r]emove all of the material stored at [the property].’’
The defendant testified that she did not receive this
letter, and Oliva testified that the town did not receive
a return receipt. The defendant did receive, however,
a November 7, 2014 letter informing her that the town
planning department ‘‘has placed a Caveat in the land
records stating that a zoning violation exists on this
property . . . .’’ The letter also notified the defendant
that ‘‘[t]he site history has been forwarded to the Town
Attorney for possible legal action.’’ In April, 2016, after
giving the defendant one day’s notice, town officials
entered the property and removed items from the defen-
dant’s lawn. The entry is the subject of a civil rights
lawsuit filed in federal District Court. The Superior
Court in the present case discussed the town’s removal
of the items, noting that it had a bearing on its decision
‘‘only as a consideration concerning appropriate equita-
ble relief, in terms of whether to run any violation period
back to the original 2014 violation notice or some later
date, and in setting the amount of any fine that might
be imposed.’’
A fire occurred at the property on December 6, 2016.
At the time of the fire, the house was not safe for the
firefighters to enter, as the house had been included
on a ‘‘hoarder list,’’ utilized to warn firefighters of the
dangers of entering. As a consequence of the fire, the
house was reduced to a burned out shell, and the back
lawn of the property was strewn with salvage from the
inside of the house. The fire marshal for the town made
an accusation that the fire was the result of arson, which
claim, following an investigation, was ultimately dis-
proven.
By notice of violation dated February 24, 2017, Oliva
informed the defendant that the property was in viola-
tion of the town’s blight ordinance, specifically the sec-
tions defining a blighted structure, dangerous structure,
and nuisance.9 The notice directed the defendant to
‘‘[r]emove the debris and unregistered vehicles from
the property and correct all damage to the building,
including but not limited to the roof, exterior walls,
windows and supporting structures . . . .’’ The notice
stated: ‘‘You have the right to request a hearing before
the Blighted Property Appeals Board within (15) days
after receipt of this notice, in accordance with Section
7 (a) of the Town Ordinance. Failure to address these
issues can result in daily penalties of one hundred dol-
lars ($100.00).’’ The defendant did not appeal the notice,
but testified that she had asked town officials how to
appeal, and they did not respond.Oliva also issued, and
the defendant received, a February 24, 2017 cease and
desist order identifying a zoning violation at the prop-
erty. The order identified the violation as ‘‘[s]torage of
discarded or second-hand material, creating a junkyard
in violation of Table 3.1.1A Permitted Uses in Residen-
tial Zones.’’ The order directed the defendant to
‘‘[i]mmediately cease the deposition of discarded and/
or second-hand material on the property.’’ The order
stated that ‘‘[y]ou have the right to appeal this action
to the South Windsor Zoning Board of Appeals within
30 days after service of this order on you, in accordance
with . . . [§] 8-12.’’ It additionally stated: ‘‘If you fail
to comply, you may be subject to further enforcement
proceedings and penalties in accordance with [§] 8-12.’’
The defendant did not appeal. See part I of this opinion.
The plaintiffs instituted this action on October 30,
2017. The plaintiffs filed an amended two count com-
plaint dated January 25, 2019 (operative complaint).
The first count alleges that the defendant violated the
blight ordinance, codified in Chapter 50, article IV, § 50-
93, of the South Windsor Code of Ordinances (blight
ordinance). Specifically, the plaintiffs allege that the
defendant ‘‘ha[d] not complied with the town’s notices’’
and had ‘‘continue[d] to accumulate more debris and
materials’’ at the property. In the second count, the
plaintiffs allege that the defendant violated § 3.1.1A of
the South Windsor Zoning Regulations (regulations),
by storing ‘‘discarded or second-hand material creating
a junkyard.’’ In their request for relief, the plaintiffs
sought ‘‘[a]n injunction ordering the [defendant] to per-
form immediately the corrective action pursuant to the
notices of violation and cease and desist order to bring
the property in compliance with the blight ordinance
and zoning regulations.’’ The plaintiffs additionally
sought, inter alia, ‘‘[a] fine of $100 per day’’ as provided
for in the blight ordinance,10 ‘‘[a] fine of $100 per day
as provided for in . . . § 8-12,’’ relative to violations of
zoning regulations, and attorney’s fees and costs. The
defendant filed an answer and special defenses on Janu-
ary 31, 2019. The plaintiffs filed their reply on February
1, 2019.
The trial on this matter was held from February 6
through 8, 2019. The plaintiffs’ witnesses included:
Oliva; Heather Oatis, the registered sanitarian for the
town; James Donnelly, a site manager with All American
Waste, which performs bulky waste pickup for the
town; and four town residents who live near the prop-
erty. The defendant also testified and called no further
witnesses, and the court heard closing arguments on
February 8, 2019.
On February 14, 2019, the court issued its memoran-
dum of decision. It first found that ‘‘for around five
years [the defendant] has been using her residentially
zoned home in South Windsor to run a junk or salvage
business.’’ It stated that, although the defendant takes
some personal property that she cleans out of fore-
closed homes to storage facilities, she also takes mate-
rial to her property and sorts it on her lawn. She then
‘‘sells some, discards some, and keeps some.’’ The court
found that, ‘‘[o]ver the years, the front and right side
of her house have been regularly strewn with things
and parts of things that appear to come and go.’’ The
court stated that although the defendant no longer lives
at the property, she continues to be there most days
and that she stores equipment and sorts salvage there.
The court found that the defendant had been using
her property for years to operate her business in viola-
tion of Table 3.1.1A of the regulations, which identifies
the permitted uses of a residential property. The court
stated that whether one considered her use of the prop-
erty as running a junkyard or a salvage operation, nei-
ther use is permitted in a residential zone.
As to the blight allegations, the court found that the
defendant’s property was in violation of the blight ordi-
nance, in that ‘‘[h]er house has been a ruin since 2016,
and the lawn has been strewn with not just her commer-
cial salvage but with piles of her personal property.’’
The court found that, although the blight ordinance
authorizes $100 fines for each separate offense, the
ordinance does not set up a procedure ‘‘that makes
clear how to impose the $100 fine nor do they say that
’per offense’ means that every day a problem continues
is a new offense.’’ The court concluded that ‘‘without
a mechanism making clear how the blight fine is
imposed and with no provision for adequate notice of
it being imposed, allowing it to be imposed here under
these circumstances can’t be squared with a prudent
exercise of the court’s discretion and the basic notion
that [the defendant] is owed some due process before
the government fines her.’’ Accordingly, the court
declined to impose any fines under the blight ordinance.
The court did impose fines for the defendant’s viola-
tion of the zoning regulations. It declined to impose
fines dating back to the October 10, 2014 notice, given
the evidence suggesting that the defendant had not
received that notice. The court found that the defendant
wilfully had violated the town’s zoning regulations since
at least February 24, 2017, the date of the cease and
desist order. The court credited testimony of neighbors
that the defendant continued to deposit and sort mate-
rial at the property even up to the date of trial, and it
found not credible the testimony of the defendant that
she had not brought any new material to the property
since the 2016 fire.
Pursuant to § 8-12, the court ‘‘cho[se] a per diem fine
of $175 per day,11 running from February 24, 2017, to
[the] date [of its memorandum of decision] and
round[ed] the total to an even $125,000.’’12 (Footnote
added.) In setting the amount of the daily fine, the
court considered the following: the defendant’s ‘‘lack
of candor and the length of time since 2017 in which
she has violated the peace of this residential neighbor-
hood,’’ the loss of the defendant’s home and her claims
of financial hardship, the defendant’s claim ‘‘that she
has been financially handicapped by the town’s claim
against her insurance proceeds and what proved to be
baseless accusations by the fire marshal of arson on
her property.’’ The court found that the hardship faced
by the defendant in cleaning up the property did not
justify her continuing to operate part of her business
on the property.
The court also enjoined the defendant from ‘‘parking
overnight or storing for any period of time, commercial
vehicles, machinery, tools or other equipment she uses
for business purposes . . . unloading, sorting, storing,
or disposing of any salvage or other personal property
except that she may store there personal property that is
currently being used for the sole purpose of maintaining
that property . . . [and] maintaining on the lawns of
the property any personal property not currently being
used for its intended purpose.’’ The court indicated that
it would ‘‘separately entertain a motion for attorney’s
fees as provided by the statute for wilful violations.’’
It stated that it would not enter judgment until the
resolution of any attorney’s fees motion.
On February 22, 2019, the plaintiffs filed an applica-
tion for attorney’s fees and attached an affidavit in
which Attorney Morris R. Borea averred to counsel fees
in the amount of $51,674 and expenses in the amount
of $1039.18. On March 8, 2019, the defendant filed an
objection to the plaintiffs’ application for attorney’s
fees. On April 24, 2019, the court held a hearing on the
application for attorney’s fees. That same day, the court
awarded the plaintiffs attorney’s fees and costs as
requested. This appeal followed.13
I
We first turn to the defendant’s claim that the Febru-
ary 24, 2017 cease and desist order premised on her
alleged zoning violation is unconstitutionally vague, in
that it ‘‘was not clear as to the conduct [the] defendant
must cease.’’ We first conclude that the defendant’s
claim is unpreserved because she did not raise it before
the trial court. Furthermore, we do not review her
unpreserved claim pursuant to our bypass doctrines14
because, even had she presented her claim to the trial
court, the trial court would have lacked jurisdiction
over it on the basis that she failed to exhaust her admin-
istrative remedies.
The following additional facts and procedural history
are relevant to the defendant’s claims on appeal. As
noted previously, the defendant did not appeal the Feb-
ruary 24, 2017 cease and desist order to the zoning board
of appeals. In response to the filing of the complaint
in this enforcement action, the defendant filed an
answer and special defenses, in which she asserted,
inter alia, that ‘‘[t]he notice of violations at issue are
unconstitutionally vague in that they do not state
whether or not [the] defendant is actually being penal-
ized on a daily basis or in what amount.’’15 The defendant
did not assert as a special defense the claim that she
raises before this court on appeal, which is that the
February 24, 2017 cease and desist order was unconsti-
tutionally vague in that it ‘‘was not clear as to the con-
duct [the] defendant must cease.’’ Nor did she identify
an issue with respect to the constitutionality of the
cease and desist order in the parties’ trial management
report.16 The defendant testified at trial as to her under-
standing that the cease and desist order ‘‘relat[ed] to
the fire and the debris from the fire’’ and that ‘‘I don’t
know what [the order is] talking about, secondhand
material. Anything that’s on my property has been dam-
aged by the fire or is my own personal property.’’ There
is nothing in her testimony or her counsel’s closing
argument evidencing that a claim of unconstitutional
vagueness was raised before the trial court. Therefore,
we conclude that her claim is unpreserved.
Moreover, we need not reach her unpreserved consti-
tutional claim through any of our bypass doctrines
because we conclude that, even if she had raised this
claim before the trial court, it would have lacked subject
matter jurisdiction over the claim. The doctrine of
exhaustion of administrative remedies ‘‘implicates the
subject matter jurisdiction of the Superior Court
. . . .’’ Wethersfield v. PR Arrow, LLC, 187 Conn. App.
604, 624, 203 A.3d 645, cert. denied, 331 Conn. 907, 202
A.3d 1022 (2019). ‘‘It is well established that [w]hen a
party has a statutory right of appeal from the decision
of an administrative officer or agency, he [or she] may
not contest the validity of the order if [the administra-
tive] officials seek its enforcement in the trial court
after the alleged violator has failed to appeal.’’ (Internal
quotation marks omitted.) Sams v. Dept. of Environ-
mental Protection, 308 Conn. 359, 397, 63 A.3d 953(2013); see also Gelinas v. West Hartford, 225 Conn.
575, 595, 626 A.2d 259 (1993) (‘‘[W]hen a party has a
statutory right of appeal from the decision of an admin-
istrative officer or agency, he may not, instead of appeal-
ing, bring an independent action to test the very issue
which the appeal was designed to test. . . . Likewise,
the validity of the order may not be contested if zoning
officials seek its enforcement after a violator has failed
to appeal.’’ (Citations omitted; internal quotation marks
omitted.)). ‘‘The exclusive remedy to object to a cease
and desist order is an administrative appeal to a zoning
board of appeals and potentially to the Superior Court,
pursuant to General Statutes §§ 8-6, 8-7 and 8-8.’’
Ammirata v. Zoning Board of Appeals, 81 Conn. App.
193, 202, 838 A.2d 1047, cert. denied, 268 Conn. 908,
845 A.2d 410 (2004). Section 8-6 (a) (1) provides that
the zoning board of appeals shall have the power ‘‘[t]o
hear and decide appeals where it is alleged that there
is an error in any order, requirement or decision made
by the official charged with the enforcement’’ of the
zoning regulations. See also Piquet v. Chester, 306 Conn.
173, 185, 49 A.3d 977 (2012) (‘‘[w]hen a landowner
receives notice from a zoning compliance officer that
the landowner’s existing use of his or her property is
in violation of applicable zoning ordinances or regula-
tions, that interpretation constitutes a decision from
which the landowner can appeal to the local zoning
board of appeals pursuant to § 8-7 and, when applicable,
pursuant to local zoning regulations’’).
On appeal, the defendant seeks to challenge the Feb-
ruary 24, 2017 cease and desist order by claiming that
it is unconstitutionally vague because the parties dis-
agreed as to the conduct to which it applied. The defen-
dant states that the plaintiffs’ counsel ‘‘apparently
thought it pertained to the debris strewn backyard from
when the state police ordered her to empty the contents
of her shed onto her lawn . . . [the] defendant thought
it pertained to the debris from the fire which meant
her burnt down house and personal property blown
through the windows of the second floor of her house
by powerful fire hoses [and] the court thought it per-
tained to her depositing personal property she recov-
ered from cleaning out foreclosed homes because it
fined her for the same.’’ We conclude that the broad
grant of power in § 8-6 (a) (1) would have conferred
on the zoning board of appeals the power to decide the
validity and application of the cease and desist order.
The defendant thus would have been required to
exhaust that administrative remedy before raising such
a claim in this enforcement action. See Wethersfield v.
PR Arrow, LLC, supra, 187 Conn. App. 627 (court lacked
jurisdiction over defendant’s claim that zoning enforce-
ment officer exceeded authority in issuing cease and
desist order on basis of failure to exhaust administrative
remedies where defendant appealed from cease and
desist order to zoning board of appeals but withdrew
the appeal). It is undisputed that the defendant did not
appeal the February 24, 2017 cease and desist order
identifying a zoning violation at the property.
Although the defendant testified at trial to the effect
that she was prevented from appealing the February
24, 2017 notice of violation with respect to the town’s
blight ordinance, her testimony was specific to that
notice, in that she maintained that town officials had
informed her that the town had a new blight appeal
board that would be taking appeals but was not in place
yet.17 She made no such claim as to the February 24, 2017
cease and desist order based on her zoning violation.
In closing argument before the trial court, the following
exchange occurred:
‘‘[The Plaintiffs’ Counsel]: So with regard to that, they
didn’t file a zoning appeal. The law is clear. They’re
stuck with that violation. The facts support the violation
and it’s existed until today.
‘‘The Court: Let me ask [the defendant’s counsel] to
respond on the zoning matter purely.
‘‘[The Defendant’s Counsel]: Okay.
‘‘The Court: So if the thing says you’re in violation
of the zoning, and let’s say you do, you’re [a] reasonable
person, you claim there’s a hardship because your place
is burned out, you’re waiting for the insurance proceeds.
Wouldn’t the proper thing to do would be to go to the
ZBA and appeal and claim a hardship for the zoning
part, not the blight?
‘‘[The Defendant’s Counsel]: Yes, I understand, Your
Honor. But you have to understand, first of all, she lost
everything, the house burned down, she’s living in a
motel, she has no insurance proceeds. She doesn’t have
the—whatever access she has to the Internet is
extremely limited, has just the clothes on her back when
she walked out of that house. And in addition, Your
Honor, the property is a crime scene. She was not
allowed to touch anything. So I don’t know how she
could—
‘‘The Court: You’re missing the question. I want you
to go back to the question.
‘‘[The Defendant’s Counsel]: Yes.
‘‘The Court: Which is what reasons should be excused
from appealing? And what you’re telling me is, in other
words, is that this was a terrible time in her life and
she should be excused from it for that reason.
‘‘[The Defendant’s Counsel]: She made—you know,
all I can say is she made a reasonable attempt to appeal
it and it seems—
‘‘The Court: I’m sorry. She made a reasonable attempt
to appeal the zoning thing? The zoning thing says you
appeal and there’s a process to do it. And she seeks—
‘‘[The Defendant’s Counsel]: I’m thinking of the blight,
Your Honor.
‘‘The Court: That’s my point. I understand the argu-
ment on the blight. I’ll take notice of that.’’
Accordingly, the defendant did not argue that she
was prevented from filing an appeal of the February
24, 2017 cease and desist order identifying a zoning vio-
lation.18
We acknowledge that ‘‘[o]ur Supreme Court has rec-
ognized a narrow exception for claims of constitutional
dimension . . . that applies when the challenge is to
the constitutionality of the statute or regulation under
which the board or agency operates, rather than to the
actions of the board or agency. . . . That exception to
the exhaustion requirement also applies when a defen-
dant raises the constitutional validity of a municipal
[zoning] ordinance [as a defense to] an action to enforce
its provisions against [the defendant].’’ (Citations omit-
ted; internal quotation marks omitted.) Wethersfield v.
PR Arrow, LLC, supra, 187 Conn. App. 629.
In the present case, the defendant has not alleged
any constitutional defect in the regulations whose
enforcement is at issue. Rather, the defendant’s chal-
lenge is to the actions of Oliva in issuing the cease
and desist order, which challenge would be beyond the
narrow purview of the constitutional exception. See id.,
630 (special defense alleging that cease and desist order
issued by zoning enforcement officer was unconstitu-
tional and impermissibly vague constituted challenge
to action of enforcement officer in issuing the order
and did not qualify under constitutional exception to
exhaustion requirement). Accordingly, the defendant
would have been required to exhaust her administrative
remedies before raising in this enforcement action her
claim challenging the cease and desist order, which she
indisputably did not do. Thus, the trial court would
have lacked subject matter jurisdiction over such a
claim, and, therefore, we do not reach her unpre-
served claim.
II
We next turn to the defendant’s claim that the court
erred in failing to conclude that she was justified in
not cleaning the property following her receipt of the
February 24, 2017 cease and desist order on the basis
that she ‘‘had been instructed by both the Connecticut
State Police and her insurance carrier not to touch or
remove any of the personal property located in the
backyard . . . .’’ The entirety of the plaintiffs’ argu-
ment in response is that they ‘‘strongly [disagree] that
[the defendant] had ‘legal justification’ to ignore the
[cease and desist] letter.’’ They maintain, however, that
if this court accepts that the defendant cannot be held
liable for violations during the pendency of the investi-
gation, ‘‘such investigation cannot excuse her violations
for the other years of noncompliance.’’
The defendant’s claim essentially challenges the trial
court’s imposition of fines for the time period during
which she was under orders not to disturb the property.
‘‘Our question in reviewing a decision regarding . . .
daily fines pursuant to § 8-12 is whether the court
abused its discretion.’’ (Internal quotation marks omit-
ted.) Stamford v. Stephenson, 78 Conn. App. 818, 824–
25, 829 A.2d 26, cert. denied, 266 Conn. 915, 833 A.2d
466 (2003). ‘‘[Section] 8-12 does not require a court to
impose fines and to award attorney’s fees. . . .
Although § 8-12 provides in relevant part that ‘[t]he
owner or agent of any building or premises where a
violation of any provision of [the zoning] regulations
has been committed . . . shall be fined not less than
ten nor more than one hundred dollars for each day
that such violation continues,’ this court has held that
the use of ‘shall’ in § 8-12 does not create a mandatory
duty to impose fines. . . . Rather, a court has discre-
tion to impose such fines, as the circumstances require.’’
(Citation omitted.) Id., 825–26. ‘‘Our review of the trial
court’s exercise of its discretion is limited to questions
of whether the court correctly applied the law and could
reasonably have concluded as it did. . . . Every rea-
sonable presumption will be given in favor of the trial
court’s ruling. . . . It is only when an abuse of discre-
tion is manifest or where an injustice appears to have
been done that a reversal will result from the trial
court’s exercise of discretion.’’ (Internal quotation
marks omitted.) Id., 825.
The following additional facts and procedural history
are relevant to our consideration of this claim. The
defendant asserted as a special defense ‘‘legal impossi-
bility’’ in that she was instructed by the state police ‘‘to
remove certain personal property from the improve-
ments and place the same on the lawn outside while the
[arson] investigation continued for the next [eighteen]
months.’’ She further asserted that her insurer ‘‘specifi-
cally instructed the defendant not to touch any of the
personal property either inside or outside of the struc-
tures, or to touch the structures themselves, while their
investigation continued.’’ The plaintiffs denied the
defendant’s special defense.
The following evidence was presented at trial in sup-
port of the defendant’s defense that she was unable
to remediate the zoning violation at the property. The
defendant testified that, following the fire on December
6, 2016, an arson investigation continued into 2018. She
additionally testified that she was instructed not to
touch anything on the property for a few months during
the police investigation. She testified that ‘‘after that
was concluded my insurance company told us not to
touch it because they had to determine what property
was damaged and what they were going to pay. So they
had to see the whole contents and everything that was
being claimed, so we were not to remove anything.’’
This testimony was supported by written claim com-
ments prepared by representatives of her insurer (claim
comments), which were entered into evidence as a full
exhibit without objection from the plaintiffs. Those
claim comments indicate that town officials had con-
tacted the defendant’s insurer to communicate their
belief that the fire was set intentionally. For example,
a December 13, 2016 entry provided: ‘‘Deputy Fire Mar-
shal believes [the fire] may be incendiary and needs
a[n] origin and cause to review.’’19 Another entry dated
December 28, 2016, states that ‘‘Mauldin believes the
fire was intentionally set; he does not know who started
the fire.’’ A February 3, 2017 entry states that ‘‘the fire
marshal and . . . Thompson have concluded the fire
is arson.’’20
The claim comments suggest that it was not until
May 1, 2017, that the insurer determined that ‘‘the fire
damage is a covered loss under this policy.’’21 Moreover,
an October 31, 2017 e-mail from an attorney represent-
ing the defendant’s insurer to the defendant’s counsel
requested that the defendant ‘‘not discard any unusable
and/or damaged possessions [she is] claiming in this
matter.’’ The e-mail also advised that the insurer ‘‘will
be scheduling a reinspection shortly.’’
Despite evidence in the record that certain town offi-
cials believed the fire was a result of arson and had
communicated that belief to the defendant’s insurer,
the two town officials who testified at trial, Oliva and
Oatis, both stated that they were unaware that the prop-
erty was a crime scene. Specifically, Oliva testified that
she had ‘‘no knowledge’’ that the property became a
crime scene, and Oatis testified that she was not aware
that the property was declared a crime scene. Moreover,
Oliva testified that she ‘‘d[id] not know’’ when the fire
investigation was concluded, and she had ‘‘no knowl-
edge of’’ a fire marshal having made an allegation of
arson. At oral argument before this court, the plaintiffs’
counsel acknowledged that an arson investigation was
conducted and that the defendant was told not to touch
the crime scene for a period of time, which time period
he believed extended to April, 2017.
Following its conclusion that the defendant had been
violating the zoning regulations since February 24, 2017,
the court, in setting penalties, acknowledged and con-
sidered the defendant’s ‘‘claim that she has been finan-
cially handicapped by the town’s claim against her
insurance proceeds and what proved to be baseless
accusations by the fire marshal of arson on her prop-
erty.’’ It did not, however, factor into its penalties
assessment the effect of the arson investigation on the
defendant’s ability to comply with the February 24, 2017
cease and desist order. By way of that order, the defen-
dant was directed to ‘‘cease the deposition of discarded
and/or second-hand material on the property.’’ Because
the record contains undisputed evidence, and the plain-
tiffs’ counsel acknowledges that the defendant was pro-
hibited for some period of time following February 24,
2017, by her insurer and the police from removing items
from the property, we conclude that the court abused
its discretion in imposing fines beginning on February
24, 2017. ‘‘It is axiomatic that this court, as an appellate
tribunal, cannot find facts.’’ Welsh v. Martinez, 191
Conn. App. 862, 884, 216 A.3d 718 (2019). We therefore
are not at liberty to resolve the question of precisely
what date the defendant regained control of her prop-
erty following the conclusion of the police and insur-
ance investigations. Accordingly, a remand to the trial
court for a new trial on the zoning violation is nec-
essary.
Because the attorney’s fees award and injunction
flow from the judgment in favor of the town, both neces-
sarily are reversed together with the judgment.22 See
General Statutes § 8-12 (‘‘[i]f the court renders judgment
for such municipality and finds that the violation was
wilful, the court shall allow such municipality its costs,
together with reasonable attorney’s fees to be taxed by
the court’’).
III
It is appropriate for us to give guidance on issues
that are likely to recur on retrial because of our conclu-
sion that this case must be remanded for a new trial.
See Sullivan v. Metro-North Commuter Railroad Co.,
292 Conn. 150, 164, 971 A.2d 676 (2009). We therefore
will address the defendant’s claim that the court
improperly assessed a fine for the wilful violation of
zoning regulations pursuant to § 8-12. Specifically, cit-
ing Gelinas v. West Hartford, supra, 225 Conn. 575, the
defendant argues that because she was not convicted
of any criminal offense, the court’s imposition of a $175
daily fine was improper. We agree.
Section 8-12 provides in relevant part: ‘‘The owner
or agent of any building or premises where a violation
of any provision of such regulations has been commit-
ted or exists . . . or the owner . . . who maintains
any building or premises in which any such violation
exists, shall be fined not less than ten dollars or more
than one hundred dollars for each day that such viola-
tion continues; but, if the offense is wilful, the person
convicted thereof shall be fined not less than one hun-
dred dollars or more than two hundred fifty dollars for
each day that such violation continues, or imprisoned
not more than ten days for each day such violation
continues not to exceed a maximum of thirty days for
such violation, or both . . . .’’
Our Supreme Court in Gelinas v. West Hartford,
supra, 225 Conn. 593, stated: ‘‘Section 8-12 unambigu-
ously provides for both civil and criminal remedies. It
does not, however, authorize a court to impose the
same penalties in a civil proceeding that it could impose
in a criminal proceeding.’’ The court emphasized ‘‘the
necessity for a criminal prosecution as a predicate for
the imposition of fines for a ‘wilful violation.’ ’’23 Id. This
court subsequently added to that discussion. ‘‘As the
statute states, for violations of the regulations, a person
shall be fined not less than $10 nor more than $100 for
each day that the violation continues. That portion of
the provision refers to a civil proceeding, one that does
not require a finding of wilfulness or a criminal convic-
tion. . . .
‘‘On the other hand, the statute provides that if an
offense is wilful and the person is convicted thereof,
the amount of the fine is to be more than $100 per day,
but not more than $250 for each day. According to
Black’s Law Dictionary (6th Ed. 1990), to convict means
‘[t]o find a person guilty of a criminal charge, either
upon a criminal trial, a plea of guilty, or a plea of nolo
contendere. . . .’ The use of the word ‘convicted,’ dem-
onstrates that the legislature distinguished between
civil and criminal proceedings. The imposition of an
elevated fine upon conviction manifests the legislature’s
intent to impose a different and greater penalty on those
‘convicted’ in a criminal proceeding.’’ (Emphasis
added.) Gelinas v. West Hartford, 65 Conn. App. 265,
280, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d
1028 (2001).
In the present case, the court imposed a fine of $175
per day on the basis of its determination that the defen-
dant wilfully had violated the town’s zoning regulations.
There is nothing in the record to suggest, and the plain-
tiffs do not contend, that the defendant had been con-
victed of any offense in a criminal proceeding. Accord-
ingly, the daily fine of $175 was improper.
The judgment is reversed as to count two alleging a
zoning violation and the case is remanded for a new
trial consistent with this opinion on that count; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Michael Lanata was also named as a defendant in this action. On February
11, 2019, Michael Lanata was defaulted for failure to plead. He is not partici-
pating in this appeal, and we therefore refer to Kristin Lanata as the
defendant.
2
For clarity, in this opinion we refer to the town and Oliva collectively
as the plaintiffs and individually by name.
3
In her principal appellate brief, the defendant asserts five claims of error.
For ease of discussion, we discuss the defendant’s first three claims in a
different order than they appear in the defendant’s appellate brief.
The defendant’s fourth claim asserts that the court erred in issuing an
injunction that exceeded the scope of the relief sought by the plaintiffs. See
footnote 19 of this opinion. The defendant’s fifth claim asserts that the
court’s award of a fine in the amount of $125,000 and attorney’s fees in the
amount of $51,674 violates the excessive fines clause of the eighth amend-
ment to the United States constitution. We resolve this appeal in favor of
the defendant on the basis of her claim that the court improperly imposed
fines for some period of time during which she was under orders not to
disturb the property. See part II of this opinion. In light of this resolution,
we need not resolve the defendant’s fourth and fifth claims.
4
As to the defendant’s claim that the court misapplied § 8-12 in assessing
a fine for the wilful violation of zoning regulations, we address this claim
because it is likely to arise on remand. See part III of this opinion.
5
Neither party has challenged on appeal the court’s ruling as to count
one of the complaint, which alleges violation of the town’s blight ordinance.
As to that count, the court concluded that ‘‘the defendant . . . was running
a salvage business which violated the South Windsor blight ordinance, but
that the town’s ordinances were unclear how a blight fine is imposed and with
no provision for adequate notice of it being imposed . . . .’’ Accordingly,
the court did not grant the plaintiffs relief under count one. Because neither
party challenges on appeal the court’s ruling on count one of the complaint,
our remand is limited to a new trial on count two only.
6
The ordinance in effect at the time of the May 2, 2014 letter included in
its definition of blighted property, a ‘‘residential or commercially zoned
property . . . . containing accumulated debris . . . .’’ South Windsor Code
of Ordinances, No. 195, § 3 (f) (1) (2012). The ordinance defined debris as
‘‘[m]aterial which is incapable of immediately performing the function for
which it was designed including, but not limited to abandoned, discarded,
or unused objects, junk comprised of equipment such as automobiles, boats,
and recreation vehicles which are unregistered and missing parts, not com-
plete in appearance and in an obvious state of disrepair; parts of automobiles,
furniture, appliances, cans, boxes, scrap metal, tires, batteries, containers,
and garbage which are in the public view.’’ South Windsor Code of Ordi-
nances, No. 195, § 3 (2012).
7
In September, 2014, a certificate of blight lien was recorded in the land
records. It stated: ‘‘The lien created by this certificate will secure payment
of a debt resulting from a Blight Violation pursuant to Blight Ordinance No.
195 (the ‘Ordinance’) and the cost associated with remediation at the prop-
erty by the Town of South Windsor. The principal amount of said lien as of
September 9, 2014 is $2,000.00, together with any other costs and reasonable
attorney fees, and said principal amount will increase by $100 for each day
the violation continues, and will remain due on the property and have a
priority over all other liens (except real property taxes) pursuant to the
[o]rdinance and . . . General Statutes §§ 7-148aa and 52-351a.’’
8
Oliva testified that the property is zoned rural residential. Article 3, §
3.1.1 of the South Windsor Zoning Regulations (regulations) provides in
relevant part that ‘‘[u]ses within residential zones shall be governed by Table
3.1.1A.’’ According to Table 3.1.1A, neither a junkyard nor a salvage operation
is permitted in a rural residential zone. Article 10, § 10.3, of the regulations
defines a junkyard as ‘‘[a]ny place in or on which old metal, glass, paper,
cordage, or other waste or discarded or second-hand material, which has
not been a part of, or is not intended to be a part of, any motor vehicle, is
stored or deposited.’’
9
The provisions of the ordinance cited by Oliva are as follows:
‘‘Blighted structure shall mean any building or structure or any part of a
building or structure, including, but not limited to, a separate unit attached
or connected thereto, as well as the land, parking areas and other improve-
ments to the real property where the building or structure is located, in
which at least one of the following conditions exist as determined by the
Town Manager or Zoning Enforcement Officer:
‘‘(a) Failure to maintain the building or structure (including the land,
parking areas and other improvements to the real property where the build-
ing or structure is located); factors that may be considered to determine
whether a property is being maintained include, but are not limited to,
missing or boarded windows or doors; collapsing or missing walls, roof or
floor; siding that is seriously damaged or missing; fire damage; a foundation
that is structurally faulty; improperly stored garbage, trash, debris or aban-
doned or junk vehicles located thereon; dilapidation such that the property
is deteriorated to the extent that it would not receive a certificate of occu-
pancy if applied for.
‘‘(b) Attraction of illegal activity or attractive nuisance.
‘‘(c) Fire hazard or fire damage that has not been corrected or repaired
for a period of 60 days.
‘‘(d) Existence or use that creates a substantial and unreasonable interfer-
ence with the reasonable and lawful use and enjoyment of other space
within the building or of other properties within the neighborhood as docu-
mented by neighborhood complaints or by the cancellation of insurance on
other properties in the neighborhood. . . .
‘‘(g) One or more unregistered motor vehicles (including trailers) in the
public view, pursuant to Section 14-150a of the Connecticut General Statutes;
***
‘‘Dangerous structure shall mean any building or structure or any part of
a building or structure, including, but not limited to, a separate unit attached
or connected thereto, including, but not limited to, a separate unit attached
or connected thereto, as well as the land, parking areas and other improve-
ments to the real property where the building or structure is located, in
which at least one of the following conditions exist as determined by the
Town Manager or Enforcement Officer:
‘‘(a) Conditions that pose a serious or immediate danger to occupants,
users or the public that puts their health, safety and welfare at risk. . . .
‘‘(d) Damage caused by fire, wind or a natural cause to the extent that
the structure no longer provides shelter from the elements and is dangerous
to the health, safety and welfare of its occupants or users or the public.
‘‘(e) Dilapidated, decayed, unsafe, unsanitary or vermin-infested condi-
tions that are likely to cause sickness or disease or injury to the occupants
or users or the public.
***
‘‘Nuisance shall mean:
‘‘(a) A blighted structure as defined herein where there exists any condi-
tion that is a danger to the health, safety and welfare of the public;
‘‘(b) A dangerous structure as defined herein where there exists any
condition that is a danger to the health, safety and welfare of the public; or
‘‘(c) Any other vacant or improved real property where there exists any
condition that is a danger to the health, safety and welfare of the public,
including, but not limited to: . . .
‘‘(4) The accumulation of debris in such manner as may adversely affect
the health, safety and welfare of the public. . . .’’ South Windsor Code of
Ordinances, c. 50, art. IV, § 50-93 (2016).
The ordinance was amended in 2016 to remove from the definition of
debris the requirement that it be ‘‘in the public view.’’ South Windsor Code
of Ordinances, No. 207, § 3 (f) (1) (2012). See footnote 6 of this opinion.
10
Chapter 50, art. IV, § 50-99, of the South Windsor Code of Ordinances
provides: ‘‘(a) Penalties: (1) Each violation of this article shall be considered
a separate municipal offense. (2) Each day any violation continues shall
constitute a separate offense. (3) Each separate offense under this ordinance
shall be punishable by a fine of $100.00 payable to the Town of South
Windsor.
‘‘(b) Enforcement: (1) The town manager, enforcement officer, or any
police officer in the Town of South Windsor is authorized to issue a citation
or summons for a violation of this ordinance. (2) In addition thereto, the
town manager is authorized to initiate legal proceedings in the superior
court for the immediate correction of the violation(s), collection of any
penalties, and the recovery of all costs including costs of remedial action,
court and the reasonable attorney’s fees incurred by the Town of South
Windsor to enforce this ordinance. Further, the town manager or enforce-
ment officer are authorized to take such immediate action as may be pro-
vided herein. (3) All fines, court costs, costs of remedial action, and attor-
ney’s fees, as ordered by the court, shall constitute a lien on the subject
premises, provided the owner, lessee, or occupant of said premises has
been notified of the violations as herein provided.’’
11
It is unclear from the court’s memorandum of decision why, when the
plaintiffs had requested fines of $100 per day pursuant to § 8-12, the court
awarded nearly double that amount, $175 per day.
12
On February 21, 2019, the defendant filed a motion to reargue and for
reconsideration, asking the court to vacate the fine assessed against her.
She argued that the $125,000 fine was excessive and disproportionate to
the wrong at issue, citing Timbs v. Indiana, U.S. , 139 S. Ct. 682,
693, 203 L. Ed. 2d 11 (2019). On March 5, 2019, the plaintiffs filed an objection
to the defendant’s motion to reargue and for reconsideration, arguing that
the motion was not properly before the court in that the court had not yet
rendered judgment in the case and that the motion ‘‘simply rehashed the
unsuccessful arguments that she previously made.’’ On March 18, 2019, the
court denied the motion, stating that ‘‘[e]ven if properly filed the motion
reflects mere disagreement with the size of the fine.’’
13
At oral argument before this court, the plaintiffs’ counsel argued that
because the defendant has ‘‘cleaned up’’ the property, three of the defen-
dant’s claims on appeal—that the cease and desist order was unconstitution-
ally vague, that the defendant was justified in not complying with the cease
and desist order, and that the injunction was overbroad—are moot. ‘‘Moot-
ness is a question of justiciability that . . . implicates [this] court’s subject
matter jurisdiction. . . . Mootness . . . rais[es] a question of law over
which we exercise plenary review. . . . Justiciability requires (1) that there
be an actual controversy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . . (3) that the matter in
controversy be capable of being adjudicated by judicial power . . . and (4)
that the determination of the controversy will result in practical relief to
the complainant. . . . A case is considered moot if an appellate court cannot
grant the appellant any practical relief through its disposition of the merits.’’
(Citation omitted; internal quotation marks omitted.) Wilcox v. Webster
Insurance, Inc., 294 Conn. 206, 221–22, 982 A.2d 1053 (2009).
We fail to see how ‘‘cleaning up’’ the property renders any of the defen-
dant’s claims on appeal moot. Because her claims on appeal all foundation-
ally relate to the February 24, 2017 cease and desist order and the fines and
injunction emanating therefrom, counsel’s assertion of mootness fails.
14
See Practice Book § 60-5; State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015)..
15
The defendant asserted seven special defenses, including that ‘‘[a]ll of
[the] plaintiffs’ claims which originate on or before the filing of her petition
for relief [under chapter 7 of the Bankruptcy Code] have been discharged
and are in violation of her order of discharge’’; ‘‘[t]he plaintiff failed to follow
[General Statutes] § 8-12a because no citation has ever been issued to this
defendant by the plaintiff’’; ‘‘it was legally impossible for the defendant to
comply with any order or notice from the plaintiff to repair or otherwise
rebuild the fire damaged home or to remove any of the personal property
set out on the lawn outside’’ due to the pendency of the arson investigation;
the bank holding the mortgage on the defendant’s home ‘‘refused to tender
any of the insurance proceeds over to the defendant while claims of arson
were being investigated, thereby making it impossible for the defendant to
repair the fire damaged home’’; ‘‘[t]he blight liens are void because [the]
plaintiff failed to comply with [General Statutes § 49-73b (b) for failure to
give notice to the defendant in the manner as provided in [General Statutes]
§ 49-34 and [the] plaintiff failed to record said liens in a timely manner as
also required by § 49-73b’’; and ‘‘[t]he complaint fails to state a claim upon
which relief can be granted.’’
16
In the parties’ trial management report, the defendant identified, as
disputed issues: ‘‘1. Is the defendant liable for violations of the blight ordi-
nance? 2. Is it equitable for the court to compel the defendant to remediate
a fire damaged home when the insurance proceeds are tied up in litigation
as a result of the plaintiffs’ actions? 3. Was the defendant properly cited for
violations alleged in the complaint? 4. Is the plaintiff acting in good faith?
5. Did the defendant already comply by cleaning up the subject property?’’
17
The following exchange occurred between the plaintiffs’ counsel and
the defendant:
‘‘Q. All right. And when you received this letter dated February 24th
of 2017—
‘‘A. Yes.
‘‘Q. —did you refer to the blight ordinance to see the citations that are
in the letter as to what they meant?
‘‘A. I actually went into the town to fill out an appeal when I received
that letter. And Pam Oliva, I think that’s how you pronounce that last name,
she was not in, and I spoke with Michelle Lipe and Chris Dougan. Because
of the new ordinance they said they had a new blight appeal board that
would be taking any appeals. They didn’t think that it was in place yet; they
didn’t know what forms to give me; there was no form included with that
letter to appeal. Nobody knew how to appeal it. They said Pam would have
to get back to me when she came in; I think she was coming in the following
week; she was out. They never got back to me. I sent a letter requesting
that I had never heard back from anybody for the appeal, and then I received
a letter from the town saying it’s too late, I could not appeal it.
‘‘Q. All right. So you got this letter, you were aware of what was in the
blight ordinance because you had reviewed it and, in fact, you attempted
to appeal this notice. Is that correct?
‘‘A. Well, I did because it’s virtually—it’s impossible—the investigation
started with the fire with the arson claim in January, and they determined
it was the pellet stove in February. And then on February 2nd the town of
South Windsor, Corporal Michael Thompson called and said absolutely not,
it’s arson, we’re not agreeing to this; you need to continue the investigation.
So I was under a criminal investigation that continued into 2018, and I could
not do anything at the property while it was considered a crime scene at
the time. Mind you, the arson—was found that it wasn’t arson, but it took
to 2018. It was impossible for me to comply with that blight order when
you had just started a criminal investigation on me and the property.
‘‘Q. All right. So that’s what your testimony is. So you did not attempt to
comply with it because it was impossible for you to comply with.
‘‘A. Well, that was going to be my appeal.
‘‘Q. That was going to be the basis of the appeal.
‘‘A. The appeal.
‘‘Q. But you understand—tried to file it too late?
‘‘A. They didn’t have the forms at the town to do it and they didn’t have—
they didn’t know who the antiblight board was and [Oliva] was not in.’’
18
In her principal brief on appeal, the defendant states that she ‘‘attempted
to appeal the zoning notice but was thwarted by the plaintiff who had yet
to install a blight board or procedures for an appeal.’’
19
A previous entry, also on December 13, 2016, states that ‘‘David M—
deputy fire marshal’’ called to speak to the adjuster regarding the claim. A
subsequent entry refers to David Mauldin as the deputy fire investigator.
20
Thompson is elsewhere referred to in the claim comments as ‘‘the city
fire investigator Mike Thompson.’’
21
At oral argument before this court, the plaintiffs’ counsel referred the
court to an April 19, 2017 entry, which summarizes the findings of the cause
and origin report, including that the cause classification of the fire was
determined to be accidental. The plaintiffs’ counsel acknowledged that the
April 19, 2017 entry did not state that the information was communicated
to the defendant but he represented that a subsequent entry in May, 2017,
suggested that payment instructions regarding the loss payment were com-
municated to the defendant.
22
The defendant claims on appeal that the court’s injunction exceeded
the scope of the relief sought by the plaintiffs. Specifically, she challenges
the court’s order enjoining her from using her property to ‘‘[park] overnight
or [store] for any period of time, commercial vehicles, machinery, tools or
other equipment she uses for business purposes.’’ Because we have reversed
the judgment and remanded for a new trial, we need not address this
argument.
We note briefly, however, that the defendant has raised serious concerns
about the scope of the injunction. In the plaintiffs’ complaint, they sought
‘‘[a]n injunction ordering the defendants to perform immediately the correc-
tive actions pursuant to the notices of violation and cease and desist order
to bring the property in compliance with the blight ordinance and zoning
regulations.’’ The February 24, 2017 cease and desist order identifies the
type of zoning violation as ‘‘[s]torage of discarded or second-hand material,
creating a junkyard in violation of Table 3.1.1A Permitted Uses in Residential
Zones.’’ The corrective action required in the February 24, 2017 letter is to
‘‘immediately cease the deposition of discarded and/or second-hand material
on the property.’’
In its memorandum of decision, the trial court stated: ‘‘South Windsor is
on firm footing with its zoning regulations. It doesn’t need the blight ordi-
nance to win an injunction here. Nevertheless, for penalty purposes the
court finds [the defendant] in violation of the town’s blight ordinance.’’
(Emphasis added.) Accordingly, the injunction issued by the court was
specific to the zoning violation. We note that nowhere in the February 24,
2017 cease and desist order did the town order the defendant to cease
parking overnight any commercial vehicles. Although we need not address
whether the court abused its discretion in enjoining the defendant from
parking overnight any commercial vehicles, we merely note our serious
concerns with respect to the scope of the injunction.
23
In their brief, the plaintiffs argued that the trial court had ‘‘discretion
to issue a civil fine within the $100-$250 range.’’ At oral argument before
this court, however, the plaintiffs’ counsel conceded that Gelinas provides
that in order to impose a fine greater than $100 per day, there needs to be
a criminal conviction as a predicate fact. Although we note the plaintiffs’
apparent disagreement with Gelinas, we are bound by our Supreme Court’s
interpretation of § 8-12 therein. ‘‘[I]t is axiomatic that this court, as an
intermediate body, is bound by the decisions of our Supreme Court.’’ 109
North, LLC v. Planning Commission, 111 Conn. App. 219, 232 n.9, 959 A.2d
615 (2008).