Daylighting another enforcement case: Stamford v. Kovac

Thanks to Dave Emerson, staff to the Stamford wetlands agency (the "Environmental Protection Board"), there's another wetlands enforcement action to daylight. In mid-January I daylighted a wetlands enforcement case that has been more-or-less lost due to references to the tidal wetlands statute instead of the inland wetlands statute. This case, the Stamford Environmental Protection Board's battle since 1987 against Milivoje Kovac, Sylvester Beserminji and Lida Nosik to restore wetlands illegally filled, is neither obscure nor hard to find. It's just that it had become known early in the litigation for another important legal issue - with implications greater than just wetlands protection.

In Stamford v. Kovac, 228 Conn. 95 (1993), the Connecticut Supreme Court upheld the trial court's issuance of a mandatory temporary injunction, that is, an order of the court mandating that the defendants undertake certain actions prior to a full-blown trial on the merits at the final stages of the litigation. Typically, temporary injunctions are prohibitory, forbidding specified acts, such as filling of wetlands without a permit. The purpose of a temporary injunction is to preserve the status quo while the case is pending. The Court concluded that sometimes "it happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict irreparable injury . . ." Stamford v. Kovac, 228 Conn. 95, 101 (1993). The Supreme Court reversed the Appellate Court's ruling and upheld the trial court's temporary injunction requiring the removal of fill in the wetlands, the stabilizing of the area with the planting of native materials, and regrading the land to original contours.

After some more years of legal wrangling, the trial court turned the temporary injunction into a permanent one. (The trial court's decision is not an officially reported case, rendering the decision beyond the reach of Google Scholar and other no-cost legal search options.) When the temporary injunction was originally issued, it was accompanied by a penalty of $250 for each day the defendants did not comply with the court order. The penalty was stayed while the authority of the trial court to issue a mandatory temporary injunction was on appeal. After the Supreme Court upheld the trial court's order in December 1993, the trial court in 1995 conducted a trial. The trial court lifted the stay on the penalty and imposed the daily penalty retroactive to the date of the Supreme Court decison. From December 1993 to April 18, 1995 the penalty amounted to $120,500. Add to that the attorney's fees awarded by the court in excess of $31,000.

The case also had resulted in an earlier Appellate Court decision of significance. The trial court, accepting the recommendations of the trial attorney referee (before whom the case was tried) awarded the recovery of attorney's fees for the salaried city attorney and fees for the overhead and time spent by the two municipal wetlands agency employees. For the municipal staff, an hourly rate for each employee was used plus the hourly cost of benefits to the employee multiplied by the number of hours. The Appellate Court dismissed the defendants' appeal, holding that the defendants should not be rewarded for pursuing litigation when salaried employees are involved.

Because no appeal was taken from the trial decision reinstituting the daily penalty, the case might have been known just for its value on temporary injunctions and recovering fees associated with enforcement -- not insignificant, but also not the whole story.

Let's continue daylighting enforcement actions that may otherwise be lost.