Borough of Fenwick Historic District Commission v. Frank Sciame et al. (2013)

RULING ON MOTION FOR COUNSEL FEES

The plaintiff Borough of Fenwick Historic District Commission (“Commission”) has moved for an award of attorneys fees for its successful prosecution of this action and its successful defense of an appeal by the defendants, Frank Sciame, Barbara Sciame, 273 Water Street, LLC, and Fenwick Acquisitions, LLC, pursuant to Connecticut General Statutes § 7–147h(b).  Judgment was entered in favor of the plaintiff on August 2, 2012 when the court gave the defendants 45 days to comply with its order.   The defendants did not appeal that order, but also did not comply with it until the plaintiff filed a Motion for Contempt on October 2, 2012.

The defendants own real property located at 10 Mohegan Avenue in the Fenwick section of Old Saybrook, Connecticut (the “Property”).   The Property was previously owned by the Estate of Katharine Hepburn.

Pursuant to Connecticut General Statutes § 7–147d and the regulations of the Commission no building or structure may be erected or altered within the Fenwick Historic District until an application of a “certificate of appropriateness” as to the exterior features of the proposed structure has been submitted to and approved by the Commission.   The defendants installed 60–inch high granite posts at the entrance to their driveway without having received a certificate of appropriateness from the Commission.   Rather than order the removal of the posts, as it could have done, the Commission allowed the defendants to submit a belated application for a certificate of appropriateness.   On June 5, 2010, the Commission held a public hearing on that application.   The defendants' architect participated in the public hearing at which several members of the Commission expressed their concern that the height of the posts made them too visible from the streets and the golf course.   At the conclusion of the public hearing the Commission issued a certificate of appropriateness which approved the posts “if reduced in height to 48 inches.”

The defendants did not appeal the Commission's decision pursuant to Connecticut General Statutes § 7–147i.   Instead, they mounded dirt at the base of each post, so that the effective height of the posts was still 60 inches, rather than the 48 inches ordered by the Commission.   The Commission then had to retain counsel to attempt to effect compliance with its decision.

The Commission filed its complaint to enforce its decision in September of 2010.   The defendants filed an answer, special defenses and counterclaims.   The plaintiff moved to strike the special defenses and the counterclaims.   The court, Wiese, J., struck all but one of the special defenses and both counterclaims.   The defendants then filed an interlocutory appeal with respect to the stricken counterclaims.   The Commission had to defend this appeal and on January 15, 2013 the Appellate Court decided the appeal in favor of the Commission.   See Borough of Fenwick Historic District Commission v. Sciame, 140 Conn.App. 209 (2013).   The Court in that decision described the defendants' counterclaims as follows:

The first count of the counterclaim alleged that the commission had acted beyond its powers under General Statutes § 7–147a et seq. and under its own regulations.   The second count sought damages for intentional infliction of emotional distress.   In support of the two counts of the counterclaim, the defendants made the following relevant allegations:  (1) “through letters and oral communications, [the commission] repeatedly demanded that the [defendants] file an application for a certificate of appropriateness in connection with the installation of granite landscaping implements on the [p]roperty” and because of the continued “harassment and demands,” the defendants filed the application;  (2) “even though they believed no such [a]pplication was required”;  (3) the commission approved the application “but with inappropriate and historically unfounded stipulations”;  (4) “the [c]ertificate is inherently ambiguous, as it arbitrarily and without historic precedent, mandated that certain inner posts of the granite landscaping installation be of different size [than] certain outer posts”;  (5) after issuing the certificate, the commission “continued to harass and annoy the [defendants] regarding the granite landscaping installation”;  (6) “[d]espite the [defendants'] compliance with the unenforceable [c]ertificate, [the commission] continued to make unreasonable demands as to the height of the landscaping installation”;  and (7) the commission “has brought the instant action in a further attempt to intimidate, harass and annoy the [defendants] into complying with [its] unfounded, illegitimate and illegal demands.”

Borough of Fenwick Historic District Commission v. Sciame, 140 Conn.App. at 213–14.

In affirming the trial court's decision to strike the defendants' first counterclaim the Court stated that in Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992), “a case with circumstances nearly identical to those in this case,” the Supreme Court, “made it clear that a party who accepts the benefits of a commission approval and does not appeal whatever conditions come with the approval may not defend against later enforcement of those conditions by attacking their validity.”  Borough of Fenwick Historic District Commission v. Sciame, 140 Conn.App. at 216.

In affirming the trial court's decision to strike the defendants' second counterclaim for intentional infliction of emotional distress, the Court stated:

Even if the commission did everything that the defendants alleged in the second count of the counterclaim, the allegations are not legally sufficient to state a claim for intentional infliction of emotional distress.   The defendants' statement that the commission “harassed, intimidate[ed] and annoy [ed]” them by demanding that they comply with what they consider an invalid order is tied to the validity of the commission's enforcement actions.   The counterclaim does not allege specific facts that constitute the extreme and outrageous conduct required to state a claim for intentional infliction of emotional distress.   See Stancuna v. Schaffer, 122 Conn.App. 484, 491–93, 998 A.2d 1221 (2010).

Borough of Fenwick Historic District Commission v. Sciame, 140 Conn.App. at 218.

While the appeal related to the stricken counterclaims was pending, the Commission continued prosecuting the enforcement action against the defendants.   Just prior to the hearing date on this action, the defendants filed a Motion to Dismiss the action and the plaintiff Commission had to file a memorandum of law in opposition to that motion.   That Motion was denied by the court.

In its Memorandum of Decision dated August 2, 2012 the court, Holzberg, J., held that both the law concerning statutory construction and the fact that the members of the Commission had been concerned about the visibility of the defendants posts supported the plaintiff's contention that the Commission's decision meant that the post height should have been measured from the ground.   The court ordered that the defendants comply with the Commission's order within 45 days.   The defendants did not comply until the plaintiff brought a Motion for Contempt.

Section 7–147h(b) of the Connecticut General Statutes provides in pertinent part:

All costs, fees and expenses in connection with actions under this section may, in the discretion of the court, be assessed as damages against the violator, which, together with reasonable attorneys fees, may be awarded to the historic district commission which brought such action.

Unlike the provision in Connecticut General Statutes § 8–12, which requires a finding of a “willful” violation before attorneys fees can be awarded, § 7–147h(b) contains no such requirement.   This omission indicates the legislature's intent to allow the award of attorneys fees in historic district commission enforcement proceedings regardless of whether the defendants' conduct was willful.

There are several important public policy reasons for allowing attorneys fees in cases such as the present one.   First, it is unfair to the taxpayers to impose the costs of successful enforcement proceedings on them rather than upon the violator.   As with inland wetland enforcement actions, the intent of the attorneys fees provision in the enforcement statute is to remedy violations “and to place the financial burden upon the violator.”   See Conservation Commission of the Town of Simsbury v. Price, 5 Conn.App. 70, 75, 496 A.2d 982 (1985).   Moreover, allowing attorneys fees in these cases creates an incentive for violators to come into compliance.  City of Stamford v. Kovac, 36 Conn.App. 270, 281–82, 650 A.2d 626 (1994).

A significant amount the attorneys fees sought by the plaintiff were incurred by the plaintiff due to legal actions taken by the defendants:  they filed counterclaims of dubious merit, and appealed when those counterclaims were stricken;  filed a Motion to Dismiss the action on the eve of trial;  and did not appeal from the court's order to comply, but failed to comply until the plaintiff filed a Motion for Contempt.

At the hearing on this Motion, the defendants' counsel was given an opportunity to examine the plaintiff's counsel about the plaintiff's attorneys fees and she did so.   In addition to the litigation already described, the plaintiff's counsel attended five settlement conferences.   The plaintiff's attorneys fees are $48,847.50;  $41,511.25 which were incurred in connection with prosecuting this action and $7,336.25 in defending the appeal taken by the defendants concerning the counterclaims.   The court finds that those fees were reasonable, and were incurred over a period of approximately three years.   The court further finds that the plaintiff incurred $1,807.37 in reasonable legal costs and expenses connected with the prosecution of this action.   The court awards the plaintiff a total of $50,654.87 in attorneys fees, costs and expenses.

By the Court,

Aurigemma, J.

Aurigemma, Julia L., J.