Arthur J. Rocque, Jr. et al. v. Joseph J. Farricielli et al. (2013)

RULING RE DEFENDANT'S MOTION FOR MODIFICATION AND CLARIFICATION (DOC. NO. 277.00)

This case is a long-running action by the Commissioner of Energy and Environmental Protection, inter alia, to close and remediate an area commonly known as the “tire pond,” a solid waste disposal area straddling the Hamden and North Haven town boundaries that is on land owned by the defendant, Joseph J. Farricielli and various corporate entities that he owns or controls (Farricielli defendants).   Pending before the court is a Motion for Modification and Clarification (Doc. No. 277.00) filed by Mr. Farricielli, representing himself, and on behalf of or concerning the defendants Hamden Salvage, Inc.;   Tire Salvage, Inc.;   North Haven Tire Disposal, Inc.;   Quinnipiack Real Estate Development, Corp. and also on behalf of or concerning a company not listed as a defendant, Hamden Sand & Stone, Inc. The motion requests modification and clarification of three prior rulings in this case:  the September 21, 2001 judgment of injunction by the court (Hale, J.T.R.), Doc. No. 182.10;  the October 7, 2004 decision of the court on plaintiffs' motion for contempt (Hale, J.T.R.), Doc. No. 204.10;  and the October 3, 2007 First Supplemental Post–Judgment Order on Consent approved by the court (Sheldon, J.), Doc. No. 207.00.   Under some of these orders, Mr. Farricelli has been barred from contacting the Commissioner or his agents, employees, contractors or suppliers, except through counsel, due to his prior history of harassment.   The gravamen of his present motion, however, is that, because he is self-represented on this motion, he is unable to obtain sufficient information to make decisions about his property.   For the following reasons, the motion is denied.

I

The history of this case was chronicled in a recent Supreme Court opinion as follows:

Farricielli “and his corporations own four contiguous parcels of property, three of which are located in the town of Hamden and one in the town of North Haven [parcels].   The parcels are bordered by the Quinnipiac River on the east and by State Street on the west.   Tidal marshes abut the properties to the north and south, and two of the parcels contain ponds.   One of the ponds, which is known as the [‘tire pond’] because [Farricielli] and his corporations used it for the unauthorized disposal of approximately 15 million used tires, is separated from the Quinnipiac River and adjoining marshlands by a narrow dike.   Since the 1970s, [Farricielli] and his corporations maintained various solid waste disposal operations on these properties, and, on occasion, leased the parcels to other businesses for similar uses.  [Farricielli's] corporations and his various tenants used the land for, among other things, the sorting, recycling, reduction and disposal of construction and demolition waste, pumice, used tires and other refuse.   One tenant operated a landfill on one of the parcels, and [Farricielli] and his corporations maintained offices and scales on another of the parcels.”  Rocque v. Farricielli, 269 Conn. 187, 192, 848 A.2d 1206 (2004).

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

In February 1998, the commissioner issued a consent order designed to go into effect on May 28, 1998, which was signed by [Farricielli] on behalf of himself individually and on behalf of his corporations [consent order].   Simply stated, the consent order required [Farricielli] and his corporations to cease the operation of all unpermitted solid waste facilities and to remediate the tire pond.   Their subsequent failure to comply adequately, or, in some cases, at all, with the terms of the consent order, along with the violation of the stipulated judgment and the cease and desist order obtained by [Hamden], constitute the basis of [the underlying action].  Id., 192–94.

The commissioner commenced the underlying action on July 9, 1999, by filing “a complaint, which subsequently was amended four times, against [Farricielli] and his corporations alleging flagrant and persistent violations of General Statutes §§ 22a–44(b), 22a–108, 22a–208a, 22a–208b, 22a–208c and 22a–430, concerning the operation of their unpermitted solid waste disposal areas.   Specifically, the commissioner sought:  an order from the trial court enforcing the terms of the commissioner's 1998 consent order with [Farricielli] and his corporations, which was designed to end ongoing statutory violations;  a temporary and permanent injunction requiring [Farricielli] and his corporations to cease their illegal activities;  and an order requiring [Farricielli] and his corporations to pay civil penalties for each day of each alleged violation.   The town and its zoning enforcement officer subsequently intervened as party plaintiffs in the action, and the plaintiffs filed a joint amended complaint seeking, in addition to all of the aforementioned remedies, enforcement of an existing cease and desist order and the stipulated judgment in effect between [Hamden] and [Farricielli] and his corporations, which was designed to end ongoing violations of various zoning ordinances.  Id., 191–92.

Following a lengthy court trial [before Hon. Robert Hale, judge trial referee] and the filing of posthearing briefs, the trial court found for the plaintiffs on all counts and ordered [Farricielli] to comply with the terms of the consent order, the stipulated judgment, and the cease and desist order, and to pay civil penalties for his ongoing violations of state and local laws [2001 judgment].  [Farricielli] subsequently filed motions for reargument and for a stay of the injunctions ordered by the court pending an appeal, both of which were denied.  Id., 194.   This court affirmed the underlying judgment in an opinion released on June 1, 2004.  Id., 190–91.

With respect to the three specific parcels of the defendants' land at issue herein, known as parcels A, B and C, the tire pond is located on parcel B, which lies in both North Haven and Hamden, and which is bordered on the east by the Quinnipiac River and on the west by State Street.   Parcel A lies south of parcel B and is entirely in Hamden.   Parcel C, which is located between parcels A and B, is a narrow strip that lies entirely in Hamden.   Parcel C is owned by State Five, who, in turn, received its interest in that parcel from its corporate predecessor, Look Investment Agency, Inc. (Look).  In February 2000, Farricielli, through one of his corporations, the defendant Tire Salvage, Inc. (Tire Salvage), conveyed a 6.8–acre strip of land in the southern portion of the tire pond on parcel B to Look, causing it to become part of parcel C. Further, in June 2003, Farricielli licensed a three-acre portion of the tire pond in parcel B to Look for the sum of $1 (license agreement).

Modern [Materials Corporation (Modern) ] became involved with this property in June 2003, while the appeal to this court in the underlying action was pending.   Specifically, on June 11, 2003, State Five leased the 6.8–acre strip on parcel C to Modern for an initial five-year plus seven-month term, ending on February 28, 2009.   The lease also included a five-year renewal option, which Modern since has exercised.   Modem subsequently recorded this lease on the Hamden land records pursuant to General Statutes § 47–19.   State Five also assigned to Modern a portion of the license agreement, thus permitting Modern to occupy the three-acre strip of land on parcel B as a sublicensee.   Modern currently uses its leased premises on parcel C and this small portion of parcel B to recycle, screen and resell construction materials such as gravel, concrete, asphalt and earth materials.

Subsequent to the execution of Modern's lease, the commissioner filed a motion for contempt in 2004, alleging that the defendants had failed to complete the remediation of the tire pond as required by the 2001 judgment and that Farricielli had engaged in personal conduct that directly had interfered with the commissioner's efforts to complete the remediation.   Although the trial court denied the commissioner's motion for contempt, despite “evidence that [Farricielli] engaged in serious harassment” of the commissioner and two of its contractors engaged in remediation, the court also determined that “further clarification, guidance and strengthening of its injunction [was] required” and issued numerous supplemental orders as an amendment to the underlying judgment.   These supplemental orders, issued by memorandum of decision on October 7, 2004 (2004 order), inter alia, “enjoin[ed] all persons who are given notice thereof, from preventing the commissioner, his agents, employees and contractors from having full and complete access to the [t]ire [p]ond and/or [p]arcel A, and from interfering with actions taken by the commissioner pursuant to paragraph 3 of the September 21, 2001 judgment.”   (Emphasis added.)   In October 2004, the commissioner served Modern with a notice of judgment containing both the 2001 judgment and the 2004 order.

In October 2007, in the interest of continuing to close and remediate the tire pond after complications had resulted from the loss of fill material from a major construction project in Boston, Massachusetts, and in the interest of resolving both the underlying action and a separate civil action that the commissioner had commenced against State Five seeking to hold State Five and its president, Jean L. Farricielli, Farricielli's wife, liable for the defendants' financial obligations pursuant to the underlying judgment;  see generally Commissioner of Environmental Protection v. State Five Industrial Park, Inc., 304 Conn. 128, 37 A.3d 724 (2012);  the parties negotiated and consented to the entry of the first supplementary postjudgment order (2007 order) by the trial court, Sheldon, J. The 2007 order specifically and permanently enjoined the defendants from interfering with the closure of the tire pond, as well as directly or indirectly “deriving any monetary gain from parcel B”;  and ‘ “participating in the management or control of parcel B, except as directed by the commissioner.”   The 2007 order did, however, specifically contemplate Modern's role as a lessee of premises at the tire pond, as it permitted the defendants “until otherwise ordered by the court, [to] continue to receive lease payments from Modern ․ for its lawful occupancy of parcel B. [The defendants shall not] accept from Modern ․ any lease payments in advance of greater than one month.”

Commissioner of Environmental Protection v. Farricielli, 307 Conn. 787, 790–99 A.3d (2013) (footnotes omitted).

Against this background, the pending motion seeks modification and clarification on the following points:

(1) The Supreme Court of the State of Connecticut rendered a decision on the appeal of COMMISSIONER OF ENVIRONMENTAL PROTECTION ET AL. v. STATE FIVE INDUSTRIAL PARK, INC., ET AL. on March 20, 2012, reversing a lower court decision that State Five Industrial Park Inc., shall not be responsible for the obligation of the Farricielli defendants.   Argued September 6, 2011—officially released March 20, 2012 ․ The Farricielli defendant is requesting clarification that Parcel C, owned by State Five Industrial Park, Inc., is no longer affected by this order per the decision of the Connecticut State Supreme Court.

(2) The prohibitory injunctions imposed on the Farricielli Defendants in the 2001 judgment and the October 2004 Memorandum of Decision that are consistent with the terms of the First Supplementary Postjudgment Order shall continue to apply to the Farricielli Defendants that prohibits the Farricielli Defendants from “(i) deriving any monetary gain from Parcel B”;  ․ After the fines are paid and the $1 million bond is posted, in accordance With the Memorandum of Decision dated September 21, 2001, the Farricielli defendants should not be prohibited from any excess money derived from the closing of, or use of Parcel B.

(3) The prohibitory injunctions imposed on the Farricielli Defendants in the 2001 Judgment and the October 2004 Memorandum of Decision that are consistent with the terms of the First Supplementary Postjudgment Order shall continue to apply to the Farricielli Defendants that prohibits the Farricielli Defendants from “having any contact or communication, direct or indirect with the contractors or material suppliers employed or used by the Commissioner for purposes of conducting site remediation work pursuant to the court's September 21, 2001 judgment except communications between counsel for the defendant and for the Commissioner” ․ The Faricielli defendant is requesting modification and clarification that this prohibitory provision of the October 2004 Memorandum of Decision was intended to apply only to Parcel ‘B’ and not prevent the Farricielli defendant from complying with the 2001 Judgment as it applies to parcel “A.”

(4) The prohibitory injunctions imposed on the Farricielli Defendants in the 2001 Judgment and in the October 2004 Memorandum of Decision that are consistent with the terms of the First Supplementary Postjudgment Order shall continue to apply to the Farricielli Defendants that enjoins the Farricielli Defendants from “transferring any legal or equitable interest in the TGire Pond property or Parcel ‘A’ or Parcel ‘C’ without the written approval of the Commissioner or the court until such time as the commissioner notifies the defendant in writing that he has concluded his remediation work” ․ The Farricielli defendant is requesting modification and clarification that this prohibitory provision of the October 2004 Memorandum of Decision was intended to apply only to Parcel “B” and not prevent the Farricielli defendant from transferring any legal or equitable interest in Parcel A in complying with the 2001 Judgment as it applies to parcel “A,” as the Commissioner is not engaged in any remediation work on Parcel A.

(5) The prohibitory injunctions imposed on the Farricielli Defendants in the 2001 Judgment and the October 2004 Memorandum of Decision that are consistent with the terms of the First Supplementary Postjudgment Order shall continue to apply to the Farricielli Defendants that enjoins the Farricielli Defendants from “transferring any legal or equitable interest in the Tire Pond property or Parcel ‘A’ or Parcel ‘C’ without the written approval of the Commissioner or the court until such time as the Commissioner notifies the defendant in writing that he has concluded his remediation work” ․ The Farricielli Defendant is requesting permission to negotiate for the post closure use (which will come after the Commissioner concludes his remediation work), of Parcel “B” which use would have to receive the approval of the Commissioner.   The Farricielli defendant wished to propose a post closure contractor who wishes to use the Tire Pond, Parcel “B,” as an energy producing facility using solar panel energy technology.   Farricielli is requesting leave of the restriction that will allow him to negotiate for the post closure use of his property.

Defendant's Motion, pp. 2–6.

II

The issues are discussed seriatim:

A

The first issue is whether the self-represented party, Mr. Farricielli, can seek modification and/or clarification on behalf of or for the benefit of parties or entities other than himself.   The answer is “No.”

“The authorization to appear [self-represented] is limited to representing one's own cause, and does not permit individuals to appear [self-represented] in a representative capacity.”  (Citation omitted;  internal quotation marks omitted.)  418 Meadow Street Assocs., LLC v. One Solution Services, LLC, 127 Conn.App. 711, 714 n.3, 15 A.3d 1140 (2011);  see also General Statutes § 51–88 (“Practice of law by persons not attorneys”).   Where this defect is present, the pleading must be dismissed.   See, e.g., Gorelick v. Montanaro, 119 Conn.App. 785, 900 A.2d 371 (2010);  Ellis v. Cohen, 118 Conn.App. 211, 982 A.2d 1130 (2009).   Thus, to the extent Mr. Farricielli seeks modification or clarification on behalf of or concerning his corporations or business organizations or other entities or persons other than himself, his requests are dismissed.

B

As to the merits, the court observes that the prior rulings in this case are comprehensive, clear, and various orders have been tested on appeal by our Supreme Court.   The defendant's queries are not clear.   His arguments are speculative, premature, and unproven.   In some respects, he appears to attempt to resurrect old issues previously resolved.  “A court of equity has continuing jurisdiction over injunctions and may modify or dissolve them even after the term in which they were rendered.   If, after hearing on such motion, the court finds that justice requires a modification or dissolution because the grounds for which it was granted no longer exists, or because of changed circumstances, or other good cause, the court can so order.”   R. Bollier and S. Busby, 2 Stephenson's Connecticut Civil Procedure (3rd Ed.2002) § 227(h) citing Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969).   The court finds no valid justification for modifying or clarifying the prior orders of the court at this time.

Moreover, at the June 4, 2013 hearing on defendant's motion, the defendant made it clear that the gravamen of his motion is the fact that he is barred from contacting the Commissioner or his agents, employees, contractors or suppliers, except through counsel, due to his prior history of harassment.   Because he is self-represented on this motion, he is unable to obtain sufficient information to make decisions about his property, he contends.   The court is not persuaded.   At the hearing, it was represented that the Commissioner supplies quarterly reports about activities on the property to the Farricielli family attorney.   It was represented that Mr. Farricielli has full access to those reports, and there is no reason to doubt that fact.   Moreover, the file reflects that Mr. Farricielli is represented by counsel in this case.   Apparently, he has chosen to proceed without counsel on this motion.   Accordingly, the court finds no justification for the motion.

III

For all of the foregoing reasons, the defendant's motion for modification and clarification (Doc. No. 277.00) is denied.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.