Nature Conservancy of Connecticut, Inc. v. LLC (2013)

Memorandum of Decision on the Court's Motion to Accept Report of Attorney Trial Referee (No. 154);  And on the Objections to the Corrected ¹ Report of the Attorney Trial Referee by the Defendants Seventh Cross Highway LLC and Three Feathers LLC (No. 155)

Procedural/Factual Background

This action was commenced by the Nature Conservancy of Connecticut, Inc., a nonprofit organization, in its capacity as owner of numerous parcels of land in Weston and Redding, Connecticut consisting of approximately 1,756 acres collectively known as Lucius Pond Ordway/Devils Den Preserve, (the “Preserve”) which the plaintiff manages as protected land, and allows its use for passive outdoor recreational activities such as hiking and bird watching.   The defendants Three Feathers LLC (“Three Feathers”) and Seventh Cross Highway LLC (“Seventh Cross”) are both Connecticut limited liability companies whose sole member is the defendant Robert J. Walpuck, Jr. A portion of the Preserve's western boundary is a roadway known as Whippoorwill Lane, part of which is unimproved, having been abandoned by the Town of Weston.   The Preserve is also bounded on the west, in part, by the West Branch of the Saugatuck River (“River”) a tributary of the Saugatuck River which flows southerly into Long Island Sound.   Adjacent to the River is a wetlands system.   The complaint alleges that on or about September 15, 2009 the staff of the Nature Conservancy observed that Three Feathers and/or Walpuck and/or Seventh Cross had placed a large amount of debris, stone, dirt and gravel in the River at the location of Whipporwill Lane in an attempt to create a road crossing of the River on land owned in part by the plaintiff and in part by the defendant Seventh Cross.   The plaintiff claims that the road crossing obstructs the River causing ponding to the north and reduced flow to the south, diverting the flow of the River from its original channel to the east into a new channel.   The plaintiff further claims that the defendants have removed vegetation, placed fill and improved a road or driveway, running from the road crossing across land owned by the Nature Conservancy to other land the ownership of which is in dispute between the Nature Conservancy and the defendant Three Feathers.   Said roadway, it is alleged, is located within wetlands, adjacent to wetlands, and within the upland review area regulated by the Conservation Commission of the Town of Weston, and the activities of the defendants as alleged are regulated activities requiring permits under the Inland Wetlands and Watercourses Act (“IWWA”), Conn Gen Stat. § 22a–36 et seq. and the Inland Wetlands and Watercourses Regulations of the Town of Weston, which the defendants did not seek and did not have ․ The complaint seeks a temporary and permanent injunction against any further activities by the defendants within the River or the adjacent wetlands or within 100 feet thereof, absent a court order and permit duly issued by the appropriate government authorities, and mandatory injunctions compelling the defendants to prepare, submit, and implement a restoration plan to restore the River and adjacent wetlands to their prior condition.   Plaintiff further seeks civil penalties under IWWA, costs, fees, and expenses, including legal fees, as permitted by Conn. Gen.Stat. § 22a–44, and taxable costs.

On September 18, 2009 the court (Adams, J.) entered an Ex Parte Temporary Restraining Order (TRO), commanding the defendants (a) to cease and desist any activities within the West Branch of the Saugatuck River, or the adjacent wetlands, or within 100 feet thereof, absent an order from the court and a duly issued permit;  and (b) to cease and desist any entry on to the land owned by the Nature Conservancy.   On December 21, 2009 Judge Adams, acting pursuant to an agreement between the plaintiff and all three defendants, entered a temporary injunction repeating part (a) of the TRO but also granting permission to the plaintiff to enter upon and inspect the property owned by defendant Seventh Cross, and directing the plaintiff to prepare and file a plan of remediation of the alleged violations.   The defendants were enjoined from entering on the lands of the plaintiff except that defendant Walpuck was allowed the same rights as other members of the public to enter upon such parcels on foot without any tools or equipment and without disturbing the property.

The case was referred for trial to Attorney Trial Referee George W. Scott, Jr. (“ATR”) pursuant to Practice Book § 19–2A. The ATR heard testimony on May 9, 10, 17, and 24, 2012.   The transcripts have been filed, along with multiple exhibits entered into evidence by the plaintiff and the defendants.   The parties each filed post-hearing trial memoranda.   The ATR filed his initial Report on November 19 and his Corrected Report of Attorney Trial Referee on December 10, 2012.   He made thirty-six specific findings of fact including findings that:

11. During August and September 2009, over a period of several weeks, Walpuck and others under his direction and control placed debris, stone, dirt, and gravel in the River at the location of Whippoorwill Lane in an attempt to create or recreate a crossing of the River (hereinafter, the “Crossing”) suitable for vehicles.

12. Walpuck brought off-site materials and used machinery in his work at the Crossing.

13. Walpuck also dug, or deepened, a ditch along the north part of the Crossing, that runs perpendicular to the stream bed of the River (the “Ditch”).

14. The Crossing as constructed by Walpuck and the Ditch are generally located on property owned by the Nature Conservancy, but are also, in part, located on property owned or claimed to be owned by Seventh Cross Highway.

15. The Crossing as constructed by Walpuck obstructs the River causing ponding north of the crossing, reduces the flow of the River downstream and south of the Crossing, and diverts the flow of the River from its original channel to the east, along the north part of the Crossing that runs perpendicular to the stream bed of the River, in the Ditch that was dug or deepened by Walpuck.

16. In and adjacent to the Crossing and Ditch, Walpuck removed vegetation, placed fill, and improved a pathway, road or driveway running from the Crossing across land owned by the Nature Conservancy to other land owned by the Nature Conservancy that is the subject of a separate dispute between Nature Conservancy and Three Feathers (hereinafter, the “Roadway”) now pending before this Court as The Nature Conservancy of Connecticut, Inc. v. Three Feathers, LLC et als as D.N. FST CV10–6003500S.

17. The Roadway is located within wetlands, adjacent to wetlands, and within the upland review area regulated by the Town of Weston's Conservation Commission, acting as its Inland Wetlands and Watercourse Committee.

18. The Crossing, Ditch and Roadway are all located in a Floodway Area ․

19. Work within the Crossing, Ditch and Roadway done by Walpuck constitutes regulated activities as defined by the Inland Wetlands and watercourse Act, Conn. Gen.Stat. § 22a–36 ․ et Seq. in that the work consisted of:

a.  Operations within and use of wetlands and watercourses involving the removal and deposition of material;

b. An obstruction, construction, alteration, and pollution of wetlands and watercourses;

c. Clearing, grubbing, filling, grading, paving, excavating, constructing, depositing or removing or [sic.] materials and discharging of storm water on the land within 100 feet measured horizontally from the boundary or any wetland or watercourse, and;

d. Activities located in non-wetland and non-watercourse areas that have a significant impact on wetlands or watercourses.

20. Neither Walpuck, Seventh Cross nor Three Feathers received any permission from Nature Conservancy or anyone else to conduct any activities on its land;

21. Neither Walpuck, Seventh Cross nor Three Feathers obtained permits from any governmental authority to construct or reconstruct the Crossing or perform any work in the River, the Ditch, the wetlands, or on any land owned by Nature Conservancy or any other party.   Such permits are required under § 22a–42a C.G.S. and §§ 4.3 and 5.1 of the Town of Weston Island [sic.]   Wetlands and watercourses Regulations.

22. On October 15, 2009 Walpuck wrote a letter to the Town of Weston (the “Town”) stating that he had started to fill the stream bed and knew that a permit was required.

23. During the trial of this matter, specifically on May 9 and 17, 2012, Walpuck admitted to filling the stream with rocks to create the Crossing, without a permit.

28. Defendants' filling activities at the Crossing, Ditch and adjacent areas have caused significant environmental harm and diminished the quality and function of these wetland resources;  the Crossing fragments the River, creating a partial barrier for aquatic organisms and fish.   This barrier also disrupts the sediment transport process, caused increased deposits upstream, and increases the backwater in the upstream area, diminishing water quality.   The dug channel has increased erosion, which consequently increases deposition downstream and adversely affects water quality and the aquatic habitat ․

In his conclusions the ATR rejected defendant's claims that in constructing the Crossing the defendants were merely re-creating or re-establishing a prior crossing, and that Mr. Walpuck's admitted activities were somehow exempt from regulation and permitting because they were performed in the exercise of property rights as the owner of Seventh Cross and/or Three Feathers.   The ATR concluded that defendants violated the IWWA and the Town of Weston's Wetlands and Watercourses Regulations by conducting regulated activities without a permit, which violations entitle the plaintiff to a valid private right of action against the defendants under Conn. Gen.Stat. § 22a–44(b) which provides:

Any person who commits, takes part in, or assists in any violation of any provision of sections 22a–36 to 22a–45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense․  The Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed, and to assess civil penalties pursuant to this section.   All costs, fees, and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorneys fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action.

The ATR found for the plaintiff and recommended the following remedies against the defendants:  (1) That the Court should permanently enjoin defendants from conducting further regulated activity without a permit, and order that the Restoration Plan put forth by defendant's expert witness Laura Wildman, P.E. be implemented by plaintiff Nature Conservancy and paid for jointly and severally by the defendants.  (Estimated cost $26,234.)  (2) That the court should award plaintiff Nature Conservancy all its costs, fees and expenses pursuant to the IWWA, including attorneys fees;  and (3) That the court should assess a civil penalty for defendant's violations at the rate of $200 per day for the period August 15, 2009 through December 21, 2009, or $25,0000, as authorized by the IWWA, Conn. Gen. Stat § 22a–44b–c as additional money damages in this action.

The defendants Seventh Cross Highway LLC and Three Feathers LLC have filed five objections (No. 155) to the Corrected Report of Attorney Trial Referee.   Each of these objections will be addressed in the following discussion.

Discussion

A. Standard of Decision

The law concerning the function of attorney trial referees, and the trial court in reviewing decisions of such referees, is well settled.  “The report of a[n] ․ attorney trial referee shall state ․ the facts found and the conclusions drawn therefrom ․ The report should ordinarily state only the ultimate facts found ․ but if the ․ attorney trial referee has reason to believe that the conclusions as to such facts from subordinate facts will be questioned, it may also state the subordinate facts found proven.”  Practice Book § 19–8.   Unless the trial court finds that the attorney trial referee has materially erred in its ruling or there are other sufficient reasons why the report should not be accepted, “[the] court shall render such judgment as the law requires upon the facts in the report.”  Practice Book § 19–17.

While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based on the evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact[s] thus found ․

A reviewing authority may not substitute its findings for those of the trier of the facts.   This principle applies no matter whether the reviewing authority is the Supreme Court ․ the Appellate Court ․ or the Superior Court reviewing the findings of attorney trial referees ․ This court has articulated that attorney trial referees and fact finders share the same function ․ whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court ․

Although it is true that when the trial court reviews the attorney trial referee's report the trial court may not retry the case and pass on the credibility of witnesses, the trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report.  (Citations omitted;  internal quotation marks omitted.)  Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 201–2 (2003) quoting Killion v. Davis, 257 Conn. 98, 102 (2001).

“The factual findings of a [referee] on any issue are reversible only if they are clearly erroneous ․ A finding of fact is clearly erroneous when there is no evidence in the record to support it ․ or when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  (Citations omitted;  internal quotation marks omitted.)  Meadows v. Higgins, 249 Conn. 155, 162, (1999).  “ ․ [A]ny legal conclusions reached by an attorney trial referee have no conclusive effect ․ The reviewing court is the effective arbiter of the law and the legal opinions [of an attorney trial referee] like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment ․ Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the ․ referee.”  (Citations and internal quotation marks omitted.)  Alliance Partners, Inc. v. Oxford Health Plans, Inc., supra at 202.

B. First Objection (Finding of Fact No. 24)

Finding of fact No. 24 goes to the issue whether or not the admitted performance without a permit of Robert Walpuck and those acting under his direction was accomplished strictly on his own behalf as an individual person, or if he was also acting as the agent, servant, or employee the two limited liability company defendants.   The ATR found that Walpuck and those acting under his direction were functioning as the agents of Three Feathers and Seventh Crossing.  (Finding of Fact No. 24.)

It is undisputed that the two LLCs, Seventh Crossing and Three Feather, were single-member Connecticut limited liability companies and that defendant Walpuck was the sole member of each company.   In their answers to the complaint (Nos 117, 118, and 120), all three defendants have judicially admitted paragraph 5 of Count One of the Revised Amended Verified Complaint (No.112) which alleges that “․ Walpuck is the sole member and/or controlling member of Three Feathers and Seventh Cross, and has authority to act as agent of either or both limited liability companies.”   The only issue on authority, then, is whether Walpuck was exercising that admitted authority when he engaged in the activities which are the subject matter of this case.   There is sufficient circumstantial evidence in the record to support a valid inference that he was acting in the exercise of that authority.   In Finding of Fact No. 14 (not objected to by the defendants) the ATR found that “The Crossing as constructed by Walpuck and the Ditch are generally located on property owned by Nature Conservancy, but are also, in part, located on property owned or claimed to be owned by Seventh Cross Highway.”   He also found in Finding of Fact No. 16 (likewise uncontested) that:  “In and adjacent to the Crossing and Ditch, Walpuck removed vegetation, placed fill and improved a pathway, road, or driveway running from the Crossing across land owned by Nature Conservancy to other land owned by Nature Conservancy that is the subject of a separate dispute between Nature Conservancy and Three Feathers ․ now pending before this Court ․” Mr. Walpuck testified that “I have the right to use that [ford] to the terminus of the seventh Cross Highway property ․” (Tr. May 24, 2012, 42);  and he objected to the Restoration Plan which would remove the ford in the River because “․ they're taking out an existing Ford [ford] which has been there forever or attempting to take it out ․ and which allows me to gain access to the property of Three Feathers and to Seventh Cross Highway.”  (Tr. May 24, 2012, 43.)   And Walpuck, through his counsel, took the position at trial that his actions were justified because he was acting in the exercise of property rights of the two LLCs. (See Objection No. 2 to Finding of Fact No. 27, infra.)

The evidence that Mr. Walpuck was the sole member of the two LLCs, that he had authority to act on their behalf, that he admitted undertaking these activities to provide access to and from the properties owned or claimed by the two companies, and that he claimed to be acting in the exercise of the property rights of the two LLCs, collectively form a strong foundation for a valid inference that he performed these activities here at issue on behalf of, and while acting as the agent of, the two LLC defendants.   Defendants are correct that there is no presumption that the sole member of a limited liability company is acting as its agent,² but when there is evidence logically and reasonably indicating the exercise of that authority it may be inferred by the finder of facts.

Therefore, when the ATR said that “Walpuck never claimed to be acting specifically for himself alone or on behalf of Three Feathers or Seventh Cross, or to the exclusion of the others” he was not shifting the burden of proof to the defendants.   He had evidentiary grounds for a valid inference to conclude that the plaintiff had satisfied its burden of proof that Walpuck was acting as the agent for his two companies.   He was simply noting that the defendant had not put forth any evidence that would outweigh or detract from that inference.   This was a proper consideration for a finder of fact applying the preponderance of the evidence standard.   This was especially so since the lack of evidence from defendants was more than mere silence.   The way it was delivered, the failure of the LLC defendants to present evidence on this point could well be taken as an endorsement of the testimony given by Mr. Walpuck that he was acting for the benefit of his two companies:  “ATTY KANASKY:  After reviewing Mr. Walpuck's narrative and pervasive testimony he's covered pretty much any issues that I would have brought out with respect to Seventh Cross Highway and Three Feathers ownership or involvement to property, therefore Seventh Cross Highway or Three Feathers are not going to offer any evidence.”  (Tr. May 24, 2012, 52.)

For these reasons, the objections to Finding of Fact No. 24 are overruled.

C. Second Objection (Finding of Fact No. 27)

The ATR noted that “Walpuck claimed that in conducting the activities that are the subject of this action he was exercising property rights as owner of Seventh Cross, including alleged rights that are the subject of the other lawsuit with the Nature Conservancy” and found “He did not effectively address Plaintiff's claim that the exercise of any such property rights does not excuse non-compliance with applicable local, State, and Federal regulation.”   This objection could be overruled summarily on the ground that it went to a defensive position asserted by defendant Robert Walpuck, who has not objected to acceptance of the ATR Report, and the LLC defendants therefore have no standing to oppose this finding.   But the court will also address the grounds of objection advanced by the two LLCs.

Defendant LLCs claim the ATR's description of Walpuck's claim of right is based on a “fallacy” because “there is no other lawsuit between Seven Cross Highway LLC and the Nature Conservancy.”   That is true.   As the ATR found in Finding of Fact 16 (not objected to) Walpuck had improved a driveway running from the Crossing across land of the Nature Conservancy “to other land owned by the Nature Conservancy that is the subject of a separate dispute between Nature Conservancy and Three Feathers ․ now pending before this court as The Nature Conservancy of Connecticut, Inc. vs.   Three Feathers LLC et als. as D.N. FST CV10 6003500S.”   The ATR's description of Walpuck's claimed “defense” could be read as saying erroneously that Seventh Cross was the defendant in the other lawsuit.   Any such error would be totally harmless.   The ATR was at that point simply summarizing Walpuck's position.   Defendants were well aware of Walpuck's claim and that the defendant in the “other lawsuit” was Three Feathers.   And reading the ATR Report as a whole, including Finding of Fact 16, it is clear that the ATR was referring to the suit against Three Feathers.

The claim that the ATR placed the burden of proof on the defendants ³ is misplaced.   The ATR said;  “He” did not effectively address plaintiff's claim.  “He” clearly refers to Walpuck who has not filed this objection or any objection.   Furthermore, there was no burden shifting.   The ATR noted that the plaintiff Nature Conservancy had advanced the position (almost self-evident) that being in the exercise of “property rights” does not justify the performance of regulated activities without a permit.  (Indeed, it is hard to imagine a person performing any regulated activity on a piece of land who would not be doing so in the exercise of his own or someone else's “property rights.”)   The ATR was simply noting that the defendants had not challenged that position of the plaintiff.   In fact, when asked how his activities excused his failure to comply with applicable inland wetland laws and regulations, Mr. Walpuck had responded “I don't know.   I guess the Court will decide that.”   (Tr. May 17, 2012, p. 115.)

The objections to Finding of Fact No. 27 is therefore overruled.

D. Third Objection (Finding of Fact No. 32)

Conn. Gen Stat. § 22a–44(b),the section of IWWA pursuant to which this action is brought, provides in part that “[t]he Superior Court, in action brought by the commissioner, municipality, district, or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed.”   In this case the ATR received into evidence the Restoration Plan prepared on behalf of the plaintiff which the court has reviewed.   The ATR found:

Because of the activity conducted by Walpuck, and as a result of plaintiff's concern for the environmental damages and because it is owner of the property affected:  Plaintiff:  (a) hired Charles Farnsworth to do a survey of the area;  (b) then hired Michael Klevin, CPWS, to prepare an assessment of the wetlands;  and (c) then hired Laura Wildman, P.E., to prepare a wetlands restoration plan for the Stream Bed (the “Restoration Plan”) who used Mr. Farnsworth's survey and Mr. Klein's wetlands report to prepare the Restoration Plan. A copy of the Restoration Plan was introduced as Plaintiff's Exhibit 17.

Finding of Fact No. 31.

Defendants have not objected to Finding of Fact No. 31.   They do object, however, to the introductory phrase of Finding of fact No. 32, which says:  “The Restoration Plan is necessary, appropriate, and reasonable for the following reasons:  ․” Defendants' objection is based on certain testimony by defendants' expert witness Laura Wildman, P.E. that the plan goes “beyond restoration.”   For instance, Ms. Wildman testified that the Plan calls for the replacement of large boulders or a vegetated berm to block future vehicular access to the site.   On cross examination she admitted that there were no boulders or any berm at that location before the Crossing was constructed (TR 5/10/2012, p. 136);  and that the removal of the driveway that leads to the river's edge as shown in the Restoration Plan is beyond the scope of the Army Corp of Engineers' restoration requirements which are limited to things in the wetlands or waters themselves.  (Id. p. 148.)   But the statute does not limit a plan of restoration to an exact replication of the conditions that pre-existed the violations or to a restoration under Corps of Engineer parameters.  Section 22a–44(b) permits an order that the violations be “corrected or removed.”  (Emphasis added.)   Ms. Wildman testified that the goal was to do “ecological improvements.”  (Id. p. 135.)  “ ‘We're not restoring an intermediate disturbed condition.’  ‘We're restoring ecological health’ ․ Restore it to rivertine conditions and functions.”  (Id. pp 135–36.)   She further explained that in order to carry out certain restoration activities, it would be necessary to bring in and remove heavy equipment which would cause damage outside the currently disturbed areas, which damage would then have to be remediated.   The ATR also found that “Mr. Klein's and Ms. Wildman's expert testimony was uncontroverted.”  (Finding of Fact No. 33.)   Defendants presented no expert testimony.

The court finds that Ms. Wildman's testimony does not detract from the ATR's recommendation that the Restoration Plan be implemented at defendants' expense.   The objections to Finding of Fact No. 32 are overruled.

E. Fourth Objection (Conclusion No. B5)

Defendants object to the ATR's Conclusion No. B5 (“Mr. Walpuck's testimony concerning his actions and those of his employee(s) confirmed that Walpuck was acting not only on his own behalf but on behalf and for the benefit of his corporate alter-egos, the defendants Three Feathers and Seventh Cross Highway”) on the grounds of lack of evidence that the two LLCs are the alter-egos of Robert Walpuck, and “[M]ost certainly there is no presumption in law that a sole member limited liability company is presumed to be the alter ego of the member and therefore responsible for any actions of the member.”

This objection is sustained.   The concept of “alter ego” in this context goes to the equitable doctrine of “piercing the corporate [or LLC] veil” or, in this case “reverse piercing of the veil” since the activities of Mr. Walpuck as the sole owner and manager of Three Feathers and Seventh Cross would be used to attribute liability to those companies owned by him.   But “piercing the veil” as a theory of entity liability is not pleaded in the complaint, nor advanced by any party in their post-hearing memoranda of law to the ATR. (Nos.143–45.)   There has been no finding of any of the elements of piercing (or reverse piercing) of the corporate (or LLC) veil under the instrumentality or identity tests, such as absence of corporate formalities, inadequate capitalization, whether funds are put in and taken out of the entity for personal rather than corporate purposes, payment or guarantee of debts of the allegedly dominated entity, etc.   See Naples v. Keystone Building & Development Corp., 295 Conn. 214, 233 (2010), cited in the Supreme Court's recent discussion of reverse piercing in Patel v. Flexo Converters, USA, Inc., 309 Conn. 52, 58 (2013), where the court said:  “The alter ego test is stringent,” and “The alter ego test is therefore incompatible with imposing liability on the employer for the intentional acts of supervisors on the basis of apparent authority to act on the employer's behalf.”   The concept of “alter ego” was simply not part of this case.

The court's sustaining of this objection will have no effect on the ATR's conclusion that Three Feathers and Seventh Crossing are vicariously liable for the work performed illegally without a permit by Walpuck acting as the agent of those two companies.

F. Fifth Objection (Conclusions F 4–5)

The two LLC defendants object to the ATR's Conclusions F4–5 that the court impose a civil penalty payable to the Commissioner of Environmental Protection at the rate of $200 per day for the period August 15, 2009 through December 21, 2009.   Defendants argue that if a daily civil penalty is to be imposed, the starting point of August 15, 2009 is appropriate, but the ending point of December 21, 2009 (the date of the stipulated temporary injunction) is excessive because the “period during which the violation occurred” ended on September 18, 2009 when the Ex Parte Temporary Restraining Order was issued and “there is no evidence in the record that any activity was conducted subsequently.”   Defendants claim that an August 15 through September 18 penalty period is more in keeping with the rule of James Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 151–53 (2005).

Conn. Gen.Stat. § 22a–44(b) permits the court having found an IWWA violation in a case such as this to assess a civil penalty against any person who commits, takes part in or assists such violation with “․ a civil penalty of no more than one thousand dollars for each offense.   Each violation of said sections shall be a separate and distinct offense, and, in the case of a continuing violation, each day's continuance thereof shall be a separate and distinct offense.” ⁴  The ATR cited the methodology of Ventres, supra, where the Supreme Court affirmed the imposition of a per diem fine commencing with the start of regulated activity at the airport (clear-cutting of flood plain forest and disturbance of wetlands soils without a permit, in order to extend an airport runway) until the date the Enforcement Officer of the Town of East Haddam issued a cease and desist order from all regulated activity at the airport property, on reasoning that the cease and desist order “prevented the airport defendants from implementing any corrective or remedial plan because such action would necessarily involve the removal and deposition of material and would alter wetlands, albeit for environmentally beneficial purpose.”   Id. at 152.   In this case there were two court orders which barred the defendants from conducting any regulated activity at the site on the West Branch of the Saugatuck River.   The September 18, 2009 Temporary Restraining Order barred the defendants from any activities within the West Branch of the Saugatuck River, or the adjacent wetlands, or within 100 fee thereof absent an order from the court and a duly issued permit;  and from any entry on to the land owned by the plaintiff.   The December 21, 2009 stipulated Temporary Injunction essentially barred the defendants from the same activities but also permitted the plaintiff to enter upon the affected land for purposes of planning for remediation.   The ATR selected December 21 as the terminus of the violation without any discussion of the September 18 TRO. Defendants argue that they were prevented from further violation or from remediation efforts by the TRO, and that date should have cut off the “continuing violation.”   Plaintiff argues in favor of the December 21 terminus by attempting to distinguish Ventres on the ground that the violation in Ventres was the discreet act of cutting down trees while the violations in this case as found by the ATR included an obstruction of the River and a diversion of its flow which continued to occur after the September 18 TRO.

The court agrees with the defendants' position.   After September 18 they were barred from the property.   The TRO was every bit as binding upon them as the Temporary Injunction.   Violation of either order would subject the violator to the contempt power of the court.   There is no evidence of any active continuation of illegal activity after September 18, 2009.   There was one Motion for Contempt (No. 106) filed on October 9, 2009, complaining that Mr. Walpuck had been observed on the property by officers of the Weston Police Department on September 21, 2009, two days after abode service of the TRO had been made by attaching a copy to his front door.   The Police Report annexed to the motion indicates that the officers found Mr. Walpuck walking on the property and advised him that he was violating a restraining order.   He stated he had not been served with it.   The officers advised him of the terms of the TRO “and he agreed to leave the property.”   No finding of contempt has entered.

The September 18 terminating date is more in keeping with the rule in the Ventres case:

The plaintiffs have provided no authority for the proposition that the statute authorizes the imposition of civil penalties for the failure to remediate such violations in the absence of any administrative or court order to do so.   Moreover, whether the airport defendants were required to restore the properties and, if so, the nature and scope of any such work, were the very issues in dispute in the litigation initiated by the plaintiffs.   The plaintiffs have provided no authority for the proposition that, during the pendency of the action, the airport had a duty under the act to submit a restoration plan.   We conclude, therefore, that it was not an abuse of discretion for the trial court to limit the per diem penalties to the period during which the violation occurred and to decline to impose per diem penalties for the period during which the action was pending.

275 Conn. at 152–3.

The objection to the duration of the per diem civil penalties is therefore sustained.

Judgment

Defendants' Objections to the Corrected Report of the Attorney Trial Referee dated December 10, 2012 (“ATR Report”), having come before the court, are hereby ordered:  overruled in part and sustained in part, in accordance with the foregoing Memorandum of Decision.

The Court's Motion for Acceptance of the ATR Report, having come before the court, is hereby ordered:  granted in part and denied in part, in accordance with the foregoing Memorandum of Decision.

Judgment is hereby entered for the plaintiff, The Nature Conservancy of Connecticut, Inc.

It is further ordered and decreed that, in accordance with Conn. Gen.Stat. § 22a–44(b)–(c) defendants Three Feathers, LLC, Seventh Cross Highway, LLC, and Robert John Walpuck, a/k/a Robert J. Walpuck, Jr. (“Defendants”), jointly and severally will pay to the Commissioner of Energy and Environmental Protection a civil penalty in the amount of $200 per diem from August 15, 2009 until September 18, 2009 (penalty of $6,600) to be used for the purposes specified in Conn. Gen.Stat. § 22a–44(b).

It is further ordered and decreed that the Defendants (which term shall include all officers, directors, managers, employees, members, agents, contractors and/or subcontractors, and attorneys of any Defendant), shall, until further order of the court, cease and desist from any activities within the West Branch of the Saugatuck River and the adjacent wetlands and watercourses, or within 100 feet thereof, or activities which may have an impact thereon.   It is further ordered and decreed that (a) the Defendants are enjoined from entering upon the parcel of land shown in Map No. 3757, as recorded in the Land records of the Town of Weston, and upon the land owned by the Nature Conservancy as shown on Map No.1917 as recorded in the Land records of the Town of Weston.   Notwithstanding the provisions of this paragraph, the defendant Robert J. Walpuck individually may enter upon such parcels, on foot, to the same extent as may other members of the public pursuant to the generally applicable terms of access propounded by The Nature Conservancy.   Defendants, including Robert J. Walpuck, are enjoined from entering the parcel of land shown on Map No. 3757 as recorded in the Land Records of the Town of Weston, and upon the land owned by the Nature Conservancy as shown on Map No.1917 as recorded in the Land records of the Town of Weston by vehicle, with any tools or equipment of any kind, and from disturbing in any way the property by cutting trees or shrubs, by clearing paths, or by excavating or depositing materials of any kind;  and (b) The Defendants may not prevent or discourage other members of the public from entering upon the parcels of land identified in the foregoing paragraph (a).

It is further ordered and decreed that, pursuant to Conn. Gen.Stat. § 22a–44(b) a mandatory injunction is hereby issued that:

(a) The Nature Conservancy of Connecticut, Inc. (“Plaintiff”) shall implement the Restoration Plan entitled “West Branch Saugatuck River Ford Removal and Channel Restoration, Town of Weston, County of Fairfield, Connecticut” prepared by Laura Wildman, P.E. (Plaintiff's Exhibit 17), as soon as practicable, consistent with seasonal and weather restraints.

(b) Defendants, jointly and severally, will reimburse Plaintiff for all costs, fees, and expenses associated with implementing the Restoration Plan, including monitoring, inspection, and acceptance by regulatory authorities, including the Army Corps of Engineers, the State of Connecticut Department of Energy and Environmental Protection (“DEEP”), and the Town of Weston's Conservation Commission.

(c) Plaintiff and/or its agents and consultants are not required to obtain a DEEP or municipal wetlands permit in order to carry out the Restoration Plan, as this remediation work is under the jurisdiction of this Court pursuant to Conn. Gen.Stat. § 22a–44(b).

(d) Plaintiff and/or its agents and consultants are authorized to enter onto the property owned by defendant Seventh Cross Highway, LLC in order to carry out the Restoration Plan.

It is further ordered and decreed that, in accordance with Conn. Gen.Stat. § 22a–44(b), Defendants, jointly and severally, will reimburse Plaintiff for its costs, consultants' fees, and expenses incurred in connection with this action against Defendants, including reasonable attorneys fees and expenses.   Plaintiff may file a Motion and Affidavit compliant with Smith v. Snyder, 267 Conn. 456, 479–80 (2004), by August 15, 2013.   Defendants may file any Response thereto by August 31, 2013.   The award of such fees, costs, and expenses shall be determined at a subsequent hearing to be scheduled by the court.

It is further ordered and decreed that this court will retain jurisdiction over this matter for purposes of monitoring and enforcing this injunction, payment by defendants of the civil penalty imposed, reimbursement of Plaintiff's costs, consultants' fees, legal fees and expenses, as set forth above, and all other issues related to this matter.

SO ORDERED, at Stamford, Connecticut, this 3rd day of July 2013.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. The original Report of Attorney Trial Referee filed by ATR George W. Scott, Jr. on November 19, 2013 (No. 148) contained a typographical error at page 15 where the words “with a permit” were used in a context which seemed to call for “without a permit.”   The plaintiff made a Motion to Clarify the Report of the Attorney Trial Referee (No. 151) which resulted in a Corrected Report of Attorney Trial Referee filed on December 10, 2012 (No. 153), correcting the wording to “without a permit”)..  FN1. The original Report of Attorney Trial Referee filed by ATR George W. Scott, Jr. on November 19, 2013 (No. 148) contained a typographical error at page 15 where the words “with a permit” were used in a context which seemed to call for “without a permit.”   The plaintiff made a Motion to Clarify the Report of the Attorney Trial Referee (No. 151) which resulted in a Corrected Report of Attorney Trial Referee filed on December 10, 2012 (No. 153), correcting the wording to “without a permit”).

FN2. Although there is no presumption of agency, our courts have taken note and made exceptions to some established concepts of law in recognition of the near identity of interests between a single-member limited liability company and its sole member.   In SNET Information Services, Inc. v. Photopros Studio LLC, Superior Court, Judicial District of New Haven, Docket No. CV07–6001104S (March 19, 2008, Bellis, J.), 2008 Ct. Sup. 4633, 45 CLR 209, the court allowed the single member of an LLC to appear pro-se on behalf of the LLC as an exception to the general rule that a non-lawyer cannot appear for a corporation or limited liability company.  (“If an LLC is comprised of a single member who is before the court, all interested parties are before the court.”)   And see Chapdelaine v. Vinagro, Superior Court, Judicial District of Windham at Putnam, Docket No. CV07–5001139S (August 30, 2007, Martin, J.) 2007 Ct.Sup. 15055, 44 CLR 122 permitting a single member to sue on behalf of his LLC. (“When only one member of an LLC is eligible to vote, courts have held that the member has standing to sue on behalf of the LLC.”).  FN2. Although there is no presumption of agency, our courts have taken note and made exceptions to some established concepts of law in recognition of the near identity of interests between a single-member limited liability company and its sole member.   In SNET Information Services, Inc. v. Photopros Studio LLC, Superior Court, Judicial District of New Haven, Docket No. CV07–6001104S (March 19, 2008, Bellis, J.), 2008 Ct. Sup. 4633, 45 CLR 209, the court allowed the single member of an LLC to appear pro-se on behalf of the LLC as an exception to the general rule that a non-lawyer cannot appear for a corporation or limited liability company.  (“If an LLC is comprised of a single member who is before the court, all interested parties are before the court.”)   And see Chapdelaine v. Vinagro, Superior Court, Judicial District of Windham at Putnam, Docket No. CV07–5001139S (August 30, 2007, Martin, J.) 2007 Ct.Sup. 15055, 44 CLR 122 permitting a single member to sue on behalf of his LLC. (“When only one member of an LLC is eligible to vote, courts have held that the member has standing to sue on behalf of the LLC.”)

FN3. Ironically if this “defense” had been properly pleaded as a special defense, the defendant Walpuck would have had the burden of proof.   Practice Book § 10–50 provides:  “No facts may be proved under either a general or a special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action must be specially alleged.”   This position of Walpuck clearly falls into the latter category.   But since it was not properly pleaded, the ATR treated the plaintiff as having the burden of proof..  FN3. Ironically if this “defense” had been properly pleaded as a special defense, the defendant Walpuck would have had the burden of proof.   Practice Book § 10–50 provides:  “No facts may be proved under either a general or a special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action must be specially alleged.”   This position of Walpuck clearly falls into the latter category.   But since it was not properly pleaded, the ATR treated the plaintiff as having the burden of proof.

FN4. The statute further provides that all civil penalties so assessed “shall be awarded to the commissioner [Commissioner of Energy and Environmental Protection] (1) to restore the affected wetlands or watercourses to their condition prior to the violation wherever possible, (2) to restore other degraded wetlands or watercourses, (3) to inventory or index wetlands and watercourses of the state, or (4) to implement a comprehensive training program for inland wetlands agency members.”.  FN4. The statute further provides that all civil penalties so assessed “shall be awarded to the commissioner [Commissioner of Energy and Environmental Protection] (1) to restore the affected wetlands or watercourses to their condition prior to the violation wherever possible, (2) to restore other degraded wetlands or watercourses, (3) to inventory or index wetlands and watercourses of the state, or (4) to implement a comprehensive training program for inland wetlands agency members.”

Jennings, Alfred J., J.T.R.