Milford Inland Wetlands Agency v. Robert W. Santillo et al. (2014)

MEMORANDUM OF DECISION

This consolidated enforcement action was tried to the court on January 16, 2014.   The Milford Inland Wetlands Agency (“IWA”) and the Assistant City Planner for Milford brought suit against Robert and Tina Santillo to enforce compliance with the City's wetland and zoning laws and regulations.   The court heard testimony from Emmeline Harrigan, Assistant City Planner for the City of Milford, and from Mary Rose Palumbo, Wetlands Compliance and Enforcement Officer for the City of Milford.   The court heard argument by counsel for the City of Milford and for defendants, Robert and Tina Santillo, who were not present.   The findings and decision of the court are set forth herein.

Findings of Fact

Defendants Robert and Tina Santillo (“the Santillos” or “Defendants”) are the owners of the single-family dwelling and land Located at 277 Wheeler Farms Road, in Milford, Connecticut, The Santillos purchased the house in 2006, which had been constructed in 1996.

On or about November 9, 2009, Ms. Palumbo notified the Santillos that the house, deck, storage shed, pool and pond had been constructed within 150 feet of a wetland or watercourse without required permits.   Also on or about November 9, 2009, Ms. Palumbo issued an order to cease and desist from any further construction in the regulated area.   On or about November 18, 2009, the Milford Inland Wetlands Agency (the “IWA”) confirmed the order and directed the Santillos to submit a permit application for the above-referenced improvements and to delineate and mark the limits of the wetlands on their property.

By letter dated January 28, 2010, Ms. Harrigan advised the Santillos of several zoning violations, i.e., the house did not have a certificate of zoning compliance or a certificate of occupancy, the pool and shed were constructed without necessary permits, and an eight-foot fence surrounding the pool exceeded the six-foot limit provided in the Milford zoning regulations.   The letter contained an order directing the Santillos to provide an A–2 as-built survey and to obtain the required permits within ten days or vacate the house and remove the other improvements, and to reduce the height of the fence or apply for a variance.

The Santillos failed to correct the wetland and zoning violations, and the IWA and Ms. Harrigan on behalf of the City of Milford commenced these enforcement actions on or about March 18, 2010.

The parties appeared for trial on December 21, 2011, and agreed to a continuance and a stipulated scheduling order, which was placed on the record before Hon. Paul Matasavage.   The order provided that the Santillos were to apply to the IWA for permits for the house, decks, pool, shed, patio and pond, along with an A–2 survey and a certified soil report, all by December 30, 2011.   The Santillos were also to submit the survey to the Departments of Health, Engineering and Public Works by December 30th.   The IWA was to consider the applications at the January 2012 meeting and make a determination by April 4, 2012.

Additionally, the Santillos were to apply for zoning permits for the fence, pool and pond by January 17, 2012, and for variances for the pool and fence by January 27, 2012.   The Santillos were also directed to complete any improvements to the house and call for an inspection by January 31, 2012 and to apply for a building permit for the fence by the same date, or to cut the fence down to six feet.   Once the permits were obtained and the improvements had passed a final inspection, certificates of building and zoning compliance and a certificate of occupancy were to issue.   The court approved the arrangements and directed that a date be established for the parties to report back.

Subsequently, the Santillos submitted applications to the IWA for wetland permits for the improvements, including an A–2 survey.   Members and staff of the agency walked the property on January 24, 2012 and February 13, 2012.   On or about February 10, 2012, the Santillos submitted a wetland mitigation plan prepared by a soil scientist.   At its meeting on February 15, 2012, the Agency approved the permit applications by a vote of 6 to 2, subject to the following conditions:

1.  By 3/7/12, the Santillos were to submit a construction sequence and mitigation plan to install a drywell for the pool discharge, rip rap to prevent erosion on the south stream bank and splash pads for PVC discharge pipe outlets.

2. By 5/2/12, the Santillos were to post a bond as required by Agency staff.

3. The Santillos were to establish erosion controls and make weekly reports to the Agency.

4. By 7/6/12. the Santillos were to submit an A–2 survey showing the location of improvements, mitigation areas and wetland markers.

5. Additionally, the Santillos were required to place a wetland notification on the survey and in the deed to give notice of the wetlands, to mark the wetlands on the property at fifty-foot intervals and to submit a certification by the project engineer and wetland scientist that the mitigation met the design intent of the approval.

The permit was issued on February 15, 2012, with an expiration date of February 15, 2017.

The Santillos did not comply with any of these deadlines, nor did they take any steps to correct the zoning violations at their property.   On April 11, 2012, counsel for the Santillos requested a continuance of a court trial, stating that Mr. Santillo was unavailable due to incarceration.   On August 2, 2012, the Santillos represented that Mr. Santillo was no longer incarcerated and was “able to make efforts to remedy violations,” Subsequently, numerous continuances were requested and granted, but no progress has been made toward correcting the wetland and zoning violations or towards complying with the IWA permit conditions set forth above.

Applicable Statutory Provisions

Gen.Stat. § 22a–44 (Penalty.   Court orders) provides in pertinent part:

(b) 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.   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 deemed to be a separate and distinct 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 ․

(c) Any person who wilfully or knowingly violates any provision of sections 22a–36 to 22a–45, inclusive, shall be fined not more than one thousand dollars for each day during which such violation continues or be imprisoned not more than six months or both.   For a subsequent violation, such person shall be fined not more than two thousand dollars for each day during which such violation continues or be imprisoned not more than one year or both.   For the purposes of this subsection, “person” shall be construed to include any responsible corporate officer.

Gen.Stat. § 22a–42a provides in pertinent part:

(c)(1) On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland or watercourse without a permit.   Any person proposing to conduct or cause to be conducted upon an inland wetland or watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland or watercourse in question is located.

Gen.Stat. 22a–38 (Definitions) provides:

(13) “Regulated activity” means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a–40.

Gen.Stat. § 8–12 (Procedure when regulations are violated) provides in pertinent part:

If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises ․ The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists ․ shall be fined not less than ten dollars or more than one hundred dollars for each day that such violation continues;  but, if the offense is wilful, the person convicted thereof shall be fined not less than one hundred 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;  and the Superior Court shall have jurisdiction of all such offenses, subject to appeal as in other cases.   Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within ten days after such service ․ shall be subject to a civil penalty not to exceed two thousand five hundred dollars, payable to the treasurer of the municipality ․ If 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 attorneys fees to be taxed by the court ․

Decision and Orders

The court finds that the Defendants have violated the wetland regulations of the City of Milford in that they are maintaining a regulated activity, i.e., the house, pool, shed, pond and decks, within the regulated area without proper permits.   Accordingly, Defendants are ORDERED to comply with the conditions of the wetlands permit as specified by the IWA as set forth in the minutes of its meeting of February 15, 2012 and summarized by the court in the numbered paragraphs above, by the dates specified as follows;

1.  By 2/21/14, submission to IWA of construction sequence and mitigation plan.

2. By 4/21/14, post bond as required by Agency staff and commence construction.

3. Establish erosion controls and make weekly reports to the Agency during construction period.

4. By 6/20/14, submit an A–2 survey showing the location of improvements, mitigation areas and wetland markers.

5. Additionally, the Defendants are required to place a wetland notification on the survey and in the deed to give notice of the wetlands, to mark the wetlands on the property at fifty-foot intervals and to submit a certification by the project engineer and wetland scientist that the mitigation meets the design intent of the approval.

In the event of any discrepancy between this order and the provisions of the IWA minutes of February 15, 2012 as to the nature of the work required, the provisions of the minutes are incorporated herein and shall control.

Failure to comply with any of these deadlines shall result in the imposition of a penalty of two hundred fifty dollars a day.   Additionally, the Defendants are ordered to pay the IWA its costs, expenses and fees and reasonable attorneys fees as may be allowed, incurred in bringing the wetland enforcement action.

The court also finds that the Defendants have violated the zoning laws and regulations of the City of Milford by failing to obtain a certificate of zoning compliance or a certificate of occupancy for the house after notice of the deficiency, by constructing the pool and shed without the necessary permits, and by building a fence exceeding the height limit provided in the Milford zoning regulations.   Further, the court finds such violation to be willful.   Accordingly, the Defendants are fined twenty-five hundred dollars ($2,500) and are ordered to pay the City of Milford its fees, costs and expenses and reasonable attorneys fees to be taxed by the court, in bringing the zoning enforcement action.   Further, the Defendants are ORDERED to file applications for the required zoning and building permits within thirty days hereof.   With respect to the fence around the swimming pool, they are ORDERED to file the application for a variance as to the height of the fence or to reduce the height of the fence to six feet within thirty days hereof.   Failure to comply with any of these deadlines shall result in a fine of two hundred fifty dollars ($250) a day.

Hon. Charles T. Lee

Lee, Charles T., J.