Historic District Commission v. Sciame

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HISTORIC DISTRICT COMMISSION
OF THE BOROUGH OF FENWICK
v. FRANK SCIAME ET AL.
(AC 35713)
Gruendel, Alvord and West, Js.
Argued April 17—officially released August 12, 2014

(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
Brendon P. Levesque, with whom were Kenneth J.
Bartschi and, on the brief, Genevieve P. Salvatore, for
the appellants (defendants).
Lewis K. Wise, for the appellee (plaintiff).
Opinion

ALVORD, J. The defendants, Frank Sciame, Barbara
Sciame, 273 Water Street, LLC, and Fenwick Acquisi-
tion, LLC, appeal from the order of the trial court award-
ing the plaintiff, the Historic District Commission of
the Borough of Fenwick (commission), $50,654.87 in
attorney’s fees, costs, and expenses. On appeal, the
defendants claim that the court improperly (1) awarded
attorney’s fees without making a finding that the defen-
dants had violated General Statutes § 7-147h, and (2)
awarded attorney’s fees related to the defense of the
defendants’ counterclaim. We affirm the judgment of
the trial court.
We adopt the following facts and procedural history
set forth in this court’s opinion in Historic District
Commission v. Sciame, 140 Conn. App. 209, 58 A.3d 354
(2013). ‘‘The defendants own property at 10 Mohegan
Avenue in the section of Old Saybrook known as the
[B]orough of Fenwick. The property lies in the Fenwick
Historic District, which is subject to the jurisdiction
of the commission. In 2010, the defendants filed an
application with the commission for a certificate of
appropriateness to permit the retention of four granite
posts installed on the defendants’ property as part of
a renovation, but not shown on the approved plans.1
Rather than order the removal of the posts, the commis-
sion allowed the defendants to file the application after
the posts were installed. On June 5, 2010, the commis-
sion granted the certificate of appropriateness with the
condition that the two posts at the end of the driveway
be lowered in height from five feet to four feet. The
defendants did not appeal from the condition or any
other part of the commission’s decision.2 On September
22, 2010, the commission filed an action in Superior
Court alleging that the defendants had not lowered the
height of the posts. The commission sought a judgment
to enforce the condition, to assess fines, and to recover
costs and fees under General Statutes § 7-147h.3
‘‘On January 13, 2011, the defendants filed an
amended answer, special defenses and a two count
counterclaim.4 The first count of the counterclaim
alleged that the commission had acted beyond its pow-
ers under General Statutes § 7-147a et seq. and under
its own regulations. The second count sought damages
for intentional infliction of emotional distress. . . .
‘‘The commission moved to strike both counts of the
counterclaim on the grounds that, under Upjohn Co. v.
Zoning Board of Appeals, [224 Conn. 96, 616 A.2d 793
(1992)] they failed to state a claim for which relief
could be granted and they were barred under [General
Statutes] § 52-557n. On June 23, 2011, the court [Wiese,
J.] issued a memorandum of decision in which it granted
the commission’s motion to strike both counts of the
counterclaim. The defendants did not file a new plead-
ing; see Practice Book § 10-44; and the court [Holzberg,
J.] rendered judgment in favor of the commission on
the counterclaim.’’ Historic District Commission v.
Sciame, supra, 140 Conn. App. 211–14.
On July 21, 2011, the defendants filed an appeal of
Judge Wiese’s decision granting the commission’s
motion to strike the counterclaim. While that appeal
was pending, the action to enforce the condition
imposed in the certificate of appropriateness continued,
and the court, Holzberg, J., issued its memorandum of
decision on August 2, 2012. In that decision, the court
concluded that ‘‘the most reasonable interpretation of
the [commission’s] order is that the pillars must be
reduced in height such that from the roadbed or what-
ever location they are anchored into the ground the
height to the top of the pillar is forty eight inches.’’
The court ordered the defendants to comply with the
commission’s order within forty-five days following
judgment. The court declined to impose fines on the
defendants for noncompliance with the commission’s
order.5 The defendants, however, did not comply with
the order to decrease the height of the posts until after
the commission filed a motion for contempt.6
By motion filed August 30, 2012, the commission
requested attorney’s fees pursuant to § 7-147h (b). In
support of its request, the commission submitted the
affidavit of its counsel attesting to the services per-
formed and the hours billed. The commission requested
$41,511.25 in attorney’s fees and $1807.37 in expenses
and reserved the right to request additional fees for
future work on the matter. In its motion, the commis-
sion noted that ‘‘a significant portion of the legal fees
incurred resulted from the defendants’ actions in this
case,’’ including the filing of special defenses and a
counterclaim. On September 12, 2012, the defendants
filed an objection to the commission’s motion, arguing
that attorney’s fees could not be awarded because the
court, Holzberg, J., in its August 2, 2012 decision, did
not find that the defendants violated either the commis-
sion’s order or § 7-147h. The defendants also argued
that the court could not award attorney’s fees to the
commission because the court had not imposed fines.
On September 19, 2012, the commission filed a reply
brief, emphasizing that the ‘‘assessment of [attorney’s
fees] is in no way made dependent upon the imposition
of fines or penalties.’’
On January 15, 2013, this court affirmed the judgment
of the trial court granting the commission’s motion to
strike both counts of the defendants’ counterclaim. His-
toric District Commission v. Sciame, supra, 140 Conn.
App. 218–19. On February 13, 2013, the commission filed
a second motion for attorney’s fees and a supporting
affidavit of its counsel attesting to the services per-
formed and the hours billed. In addition to the amount
requested in its August 30, 2012 motion, the commission
sought $7336.25 in appellate attorney’s fees. A hearing
was held by the court, Aurigemma, J., on May 6, 2013.
At that time, the commission also filed a supplemental
affidavit of its counsel and attached the legal bills.
On May 16, 2013, Judge Aurigemma issued an order
awarding the commission attorney’s fees, costs, and
expenses in the amount of $50,654.87.7 Referencing the
statutory authority under § 7-147h, the court noted ‘‘the
legislature’s intent to allow the award of attorney’s fees
in historic district commission enforcement proceed-
ings regardless of whether the defendants’ conduct was
wilful.’’ The court also explained the public policy rea-
sons supporting the award of attorney’s fees in cases
like this one, including the unfairness of placing the
burden on the taxpayers to sustain the costs of success-
ful enforcement actions. The court additionally noted
that the defendants’ actions in filing a counterclaim ‘‘of
dubious merit’’ and appealing from the striking of their
counterclaim caused a significant portion of the attor-
ney’s fees to be incurred by the commission. The defen-
dants appeal from this ruling.
We first set forth the standard of review that guides
our analysis. Our review of the defendants’ claims
requires us to determine whether, in an action brought
pursuant to § 7-147h, a defendant who has not been
fined may nevertheless be ordered to pay attorney’s
fees to the commission bringing such action, and,
whether § 7-147h authorizes the court to award attor-
ney’s fees incurred by such commission in the defense
of a counterclaim. This case presents issues of statutory
construction, which are questions of law requiring ple-
nary review. Urbanowicz v. Planning & Zoning Com-
mission, 87 Conn. App. 277, 287, 865 A.2d 474 (2005).
The defendants’ argument requires us to interpret
§ 7-147h. ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) Greenfield v. Reynolds, 122 Conn. App.
465, 471, 1 A.3d 125, cert. denied, 298 Conn. 922, 4
A.3d 1226 (2010). We conclude that the meaning of the
statute is plain and unambiguous and that the court’s
award of attorney’s fees, costs, and expenses was
not improper.
I
The defendants first claim that the award of attor-
ney’s fees to the commission was improper because
the trial court never made a finding that they violated
§ 7-147h. Section 7-147h (b) provides in relevant part:
‘‘The owner or agent of any building, structure or place
where a violation of any provision of this part or of any
regulation or ordinance adopted under said sections
has been committed or exists . . . shall be fined not
less than ten dollars nor more than one hundred dollars
for each day that such violation continues . . . .’’ This
section also provides for the award of attorney’s fees
to the historic district commission bringing such
enforcement action, stating in part: ‘‘All costs, fees and
expenses in connection with actions under this section
may, in the discretion of the court, be assessed as dam-
ages against the violator, which, together with reason-
able attorney’s fees, may be awarded to the historic
district commission which brought such action. . . .’’
General Statutes § 7-147h (b).
A
We first consider whether § 7-147h mandates that
the court impose daily fines upon the defendants in a
successful enforcement action brought by a commis-
sion. The defendants argue that the court’s failure to
impose daily fines means that they were not violators,
and, therefore, the court could not properly award attor-
ney’s fees to the commission. Specifically, the defen-
dants claim ‘‘[i]f a party subject to an action brought
pursuant to . . . § 7-147h is not fined, then they did
not as a matter of law violate the statute.’’ We disagree.
The defendants rely on the language of § 7-147h,
which provides that the owner of a building where a
violation has been committed shall be fined for each
day the violation continues. It has been established that
‘‘the use of the word shall, though significant, does
not invariably establish a mandatory duty.’’ (Internal
quotation marks omitted.) Teresa T. v. Ragaglia, 272
Conn. 734, 744, 865 A.2d 428 (2005). ‘‘To determine
whether a statute’s provisions are mandatory, we have
traditionally looked beyond the use of the word ‘shall’
and examined the statute’s essential purpose.’’ Monroe
v. Renz, 46 Conn. App. 5, 14, 698 A.2d 328 (1997). ‘‘The
test to be applied in determining whether a statute is
mandatory or directory is whether the prescribed mode
of action is the essence of the thing to be accomplished,
or in other words, whether it relates to a matter of
substance or a matter of convenience. . . . If it is a
matter of substance, the statutory provision is manda-
tory. . . . If, however, the legislative provision is
designed to secure order, system and dispatch in the
proceedings, it is generally held to be directory, espe-
cially where the requirement is stated in affirmative
terms unaccompanied by negative words. . . . Such a
statutory provision is one which prescribes what shall
be done but does not invalidate action upon a failure to
comply.’’ (Citations omitted; internal quotation marks
omitted.) Fidelity Trust Co. v. BVD Associates, 196
Conn. 270, 278, 492 A.2d 180 (1985).
The defendants assert that the purpose of § 7-147h is
to punish those who violate historic district commission
regulations. We disagree with the defendants’ charac-
terization of the purpose of the statute. It is clear from
the plain language of the statute that the core purpose
of § 7-147h is to provide a means of enforcement for
historic district commissions’ regulations and orders.8
We are not persuaded, therefore, by the defendants’
contention that the imposition of daily fines is so vital
to the purpose of the statute as to be ‘‘the essence of
the thing to be accomplished . . . .’’ Fidelity Trust Co.
v. BVD Associates, supra, 196 Conn. 278. Accordingly,
we conclude that the provision authorizing the imposi-
tion of fines is directory rather than mandatory.
In support of our conclusion, we note that construing
the statutory authorization to impose fines as directory
is consistent with this court’s interpretation of the
enforcement mechanism contained in General Statutes
§ 8-12. Section 8-12 authorizes zoning commissions to
bring enforcement actions to obtain injunctions, fines,
and attorney’s fees. The statute also uses the term
‘‘shall’’ in authorizing the issuance of daily fines.9 This
court has determined that the use of the term shall in
this context does not impose a mandatory requirement
on the court to issue such fines. In Stamford v. Stephen-
son, 78 Conn. App. 818, 826, 829 A.2d 26, cert. denied,
266 Conn. 915, 833 A.2d 466 (2003), this court held that
‘‘a court has discretion to impose such fines, as the
circumstances require.’’ In Monroe v. Renz, supra, 46
Conn. App. 14, this court held that ‘‘[t]he essential pur-
pose that § 8-12 is intended to further, namely, the deter-
rence of violations of the zoning ordinances, does not
mandate that a trial court award daily fines, but rather
vests discretion in a trial court to grant such fines under
the appropriate circumstances.’’ The purpose of § 8-12
is ‘‘to provide a means to enforce the zoning regulations
and to prevent an unlawful use of a building.’’ Stamford
v. Stephenson, supra, 826. Likewise, the purpose of § 7-
147h is to provide a means for historic district commis-
sions to enforce orders and regulations, and the further-
ance of this purpose does not require the court to award
daily fines in every action brought pursuant to the
statute.
The defendants point out that § 7-147h provides that
attorney’s fees ‘‘may’’ be awarded and that violators
‘‘shall’’ be fined to advance their argument that the
legislature’s use of both ‘‘shall’’ and ‘‘may’’ in the same
section indicates that the legislature ‘‘was well aware
of the differing meaning and use of each term.’’ The
defendants cite Lostritto v. Community Action Agency
of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418
(2004), in which our Supreme Court stated that ‘‘when
the legislature opts to use the words shall and may in
the same statute, they must then be assumed to have
been used with discrimination and a full awareness of
the difference in their ordinary meanings.’’ (Internal
quotation marks omitted.) Id. We are not persuaded
that the court’s decision in Lostritto stands for the
proposition that every time the legislature uses both
‘‘may’’ and ‘‘shall,’’ the term ‘‘shall’’ must be construed
as mandatory.10 Our Supreme Court previously has
interpreted a statutory provision using the term ‘‘shall’’
to be directory where the term ‘‘may’’ was used in the
immediately following subsection; see United Illumi-
nating Co. v. New Haven, 240 Conn. 422, 466, 692 A.2d
742 (1997) (statute providing that tax assessor shall
send notice of any increases or decreases in value of
property was directory); and this court has done the
same. See Yanni v. Commissioner of Motor Vehicles,
31 Conn. App. 350, 353–54, 624 A.2d 1175 (1993) (statute
providing that commissioner of motor vehicles shall
send notice of license suspension by certified mail was
directory, rather than mandatory). In addition, this
court construed the term ‘‘shall’’ in § 8-12 as directory,
despite the existence of the term ‘‘may’’ in the same
section.11 See Monroe v. Renz, supra, 46 Conn. App.
14 (decision to grant daily fines within discretion of
trial court).
In further support of our conclusion that the provi-
sion authorizing the court to impose fines is directory,
we note that courts routinely articulate other considera-
tions in determining whether a provision is directory
or mandatory. One such indicator is whether the provi-
sion is stated in affirmative terms unaccompanied by
negative words. See Weems v. Citigroup, Inc., 289
Conn. 769, 790, 961 A.2d 349 (2008) (‘‘[l]inguistically, a
statutory provision generally is considered directory if
the requirement is stated in affirmative terms unaccom-
panied by negative words’’ [internal quotation marks
omitted]). Another factor is the presence or absence
of ‘‘a penalty provision or invalidation of an action as
a consequence for failure to comply with the statutory
directive . . . .’’ Id., 791. Here, the language authorizing
the imposition of fines under § 7-147h is set forth in
affirmative terms, and there is no provision of any con-
sequence in the event that the court declines to
impose fines.
We conclude that the determination as to whether
to impose fines under § 7-147h is within the discretion
of the trial court. The court’s decision to refrain from
imposing fines upon the defendants did not, therefore,
preclude the court from awarding attorney’s fees to
the commission.
B
Having determined that the imposition of fines under
§ 7-147h is directory rather than mandatory, we briefly
respond to the defendants’ argument that there was no
finding that they were violators. The defendants assert
that ‘‘since [they] were not found to be violators, attor-
ney’s fees could not be imposed under § 7-147h.’’ We
disagree.
Judge Holzberg’s memorandum of decision, while not
specifically referring to the defendants as violators,
ordered ‘‘compliance’’ with the commission’s order. The
order to comply is essentially an exercise of the court’s
authority ‘‘to restrain such violation and to issue orders
directing that the violation be corrected or removed.’’
General Statutes § 7-147h (a). The court was not
required to affirmatively label the defendants as viola-
tors. The court’s order of ‘‘compliance,’’ standing alone,
is sufficient to implicate the court’s authority under § 7-
147h (b), including the discretion to award attorney’s
fees.12 Accordingly, we conclude that the court pos-
sessed the authority to award attorney’s fees to the
commission for its successful enforcement action.
II
The defendants next claim that the trial court improp-
erly awarded attorney’s fees related to the defense of
the defendants’ counterclaim. Specifically, the defen-
dants claim ‘‘since a counterclaim is a distinct legal
action, absent specific statutory authority, no attorney’s
fees incurred in connection with defending any counter-
claim brought in connection with a . . . § 7-147h
action can be awarded.’’ The commission argues that
the defendants’ litigation strategy in choosing to bring
their causes of action as a counterclaim to the enforce-
ment action necessarily means that the attorney’s fees
related to the counterclaim were incurred within the
enforcement action pursuant to § 7-147h. We agree with
the commission.
Section 7-147h (b) provides in relevant 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 attorney’s fees, may be
awarded to the historic district commission which
brought such action.’’ (Emphasis added.) General Stat-
utes § 7-147h (b). We first note that the term ‘‘in connec-
tion with’’ is not defined in the statute. Our Supreme
Court, however, has interpreted the phrase broadly. In
so doing, the court looked to the dictionary definition
of the word ‘‘connection,’’ finding it to be a ‘‘causal or
logical relation or sequence . . . contextual relation or
association . . . [or] relationship in fact . . . .’’
(Internal quotation marks omitted.) Key Air, Inc. v.
Commissioner of Revenue Services, 294 Conn. 225, 235,
983 A.2d 1 (2009) (quoting Merriam-Webster’s Colle-
giate Dictionary [10th Ed. 1993]). The court further
noted that ‘‘the plain meaning of the statutory phrase
‘in connection with’ necessarily includes any factual,
contextual or causal relationship.’’ (Emphasis in origi-
nal.) Id.
A counterclaim ‘‘has been defined as ‘a cause of
action existing in favor of a defendant against a plaintiff
which a defendant pleads to diminish, defeat or other-
wise affect a plaintiff’s claim and also allows a recovery
by the defendant.’ ’’ Home Oil Co. v. Todd, 195 Conn.
333, 341, 487 A.2d 1095 (1985) (quoting 1 E. Stephenson,
Connecticut Civil Procedure [2d Ed. 1982 Supp.]
§ 129b). In other words, a counterclaim ‘‘is a cause of
action . . . on which the defendant might have
secured affirmative relief had he sued the plaintiff in a
separate action.’’ (Emphasis omitted; internal quotation
marks omitted.) Ameriquest Mortgage Co. v. Lax, 113
Conn. App. 646, 649, 969 A.2d 177, cert. denied, 292
Conn. 907, 973 A.2d 103 (2009). The defendants in this
instance chose to bring their cause of action not in a
separate action, but rather as a counterclaim to the
commission’s enforcement action. Further, we note that
the defendants’ counterclaim was occasioned, at least
in part, by the commission’s institution of the enforce-
ment action, in that both counts of the defendants’
counterclaim included allegations specific to the com-
mission’s bringing the enforcement action.13
For the foregoing reasons, we conclude that the
award of attorney’s fees, costs, and expenses related
to the defense of the defendants’ counterclaim was
statutorily authorized pursuant to § 7-147h. Accord-
ingly, the court’s award of such fees to the commission
was not improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘General Statutes § 7-147d (a) provides: ‘No building or structure shall
be erected or altered within an historic district until after an application
for a certificate of appropriateness as to exterior architectural features
has been submitted to the historic district commission and approved by
said commission.’
‘‘General Statutes § 7-147a (a) provides in relevant part: ‘As used in this
part . . . ‘‘erected’’ means constructed, built, installed or enlarged; ‘‘exte-
rior architectural features’’ means such portion of the exterior of a structure
or building as is open to view from a public street, way or place . . .
‘‘structure’’ means any combination of materials, other than a building, which
is affixed to the land, and shall include, but not be limited to, signs, fences
and walls . . . ‘‘appropriate’’ means not incongruous with those aspects of
the historic district which the historic district commission determines to be
historically or architecturally significant.’ ’’ Historic District Commission v.
Sciame, supra, 140 Conn. App. 212 n.1.
2
‘‘General Statutes § 7-147i provides in relevant part: ‘Any person or per-
sons severally or jointly aggrieved by any decision of the historic district
commission or of any officer thereof may, within fifteen days from the date
when such decision was rendered, take an appeal to the superior court for
the judicial district in which such municipality is located . . . . Procedure
upon such appeal shall be the same as that defined in section 8-8.’ ’’ Historic
District Commission v. Sciame, supra, 140 Conn. App. 212 n.2.
3
‘‘General Statutes § 7-147h (a) provides in relevant part: ‘If any provision
of this part or any action taken or ruling made by the historic district
commission pursuant to the provisions of said sections or of any regulation
or ordinance adopted under said sections has been violated, the commission
may, in addition to other remedies, institute an action in the superior court
for the judicial district wherein such violation exists, which court shall have
jurisdiction to restrain such violation and to issue orders directing that the
violation be corrected or removed. Such order may direct the removal of
any building, structure or exterior architectural feature erected in violation
of said sections or any bylaw or ordinance adopted under said sections
. . . .’
‘‘Section 7-147h also allows for fines against the property owner and
for the commission to collect its court costs and fees in pursuing such
enforcement actions.’’ Historic District Commission v. Sciame, supra, 140
Conn. App. 212–13 n.3.
4
‘‘The court struck both counts of the counterclaim and four of the five
special defenses the commission challenged in its motion to strike.’’ Historic
District Commission v. Sciame, supra, 140 Conn. App. 213 n.4. That appeal
challenged only the order striking the two count counterclaim. Id.
5
The court explained: ‘‘Because of the good faith dispute over the appro-
priate interpretation of the [commission’s] order the court declines to impose
fines for noncompliance with the [commission’s] order.’’
6
On October 3, 2012, the commission filed a motion for contempt, seeking
compliance with the court order, sanctions against the defendants in the
amount of $1000 per day for each day of noncompliance, and legal fees,
costs, and expenses. The commission withdrew this motion on October
31, 2012.
7
The court determined that the commission was entitled to $48,847.50 in
attorney’s fees, ‘‘$41,511.25 [of] which were incurred in connection with
prosecuting this action and $7336.25 in defending the appeal taken by the
defendants concerning the counterclaims.’’ The court further awarded
$1807.37 in costs and expenses.
8
Our Supreme Court, in Gentry v. Norwalk, 196 Conn. 596, 607, 494 A.2d
1206 (1985), considered the historic preservation statutes in the context of
voting power related to the establishment of historic preservation districts.
The court also discussed other provisions of the statutory scheme, noting:
‘‘The statute, consistent with its historic preservation purpose, provides
the bases for close control and supervision of the buildings and areas in
established historic districts. An enforcement procedure, including monetary
fines, is set forth for violations of the statute, of any action or ruling of an
historic district commission or of any regulation or ordinance properly
adopted.’’ Id. We note that our Supreme Court characterized the provision
at issue as a means of enforcement rather than as a punitive measure.
9
General Statutes § 8-12 provides in relevant part: ‘‘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 viola-
tion continues.’’
10
In Lostritto, the court determined that compliance with a 120 day time
limitation for filing an apportionment complaint was mandatory. Lostritto
v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 26.
While the court did discuss the legislature’s use of both ‘‘shall’’ and ‘‘may’’
in the applicable statute, this distinction was not the only basis upon which
the Lostritto court relied. The court noted other considerations, including
that another subsection further reinforced the determination that the time
limitation was mandatory, because it stated that ‘‘[t]his section shall be the
exclusive means by which a defendant may add a person who is or may be
liable pursuant to section 52-572h for a proportionate share of the plaintiff’s
damages as a party to the action.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 20–21. The court further noted: ‘‘Despite the legislature’s
apparent intent to employ mandatory language, we are mindful that the
word ‘shall’ is not dispositive on the issue of whether a statute is mandatory.’’
Id., 22. The court articulated ‘‘another factor,’’ whether the time limitation
was procedural or substantive. Id. In reviewing the court’s construction of
the provision at issue in Lostritto, it is evident that the court did not rely
solely on the legislature’s use of both shall and may, but rather noted the
use of both terms as one consideration. See also Jones v. Civil Service
Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978) (use of terms ‘‘shall’’
and ‘‘may’’ is ‘‘a factor that evidences affirmative selectivity of terms with
specific intent to be distinctive in meaning’’ [emphasis added]).
11
General Statutes § 8-12 provides in relevant part: ‘‘If any building or
structure has been erected, constructed, altered, converted or maintained
. . . 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 . . . 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 . . . .’’ (Emphasis added.)
12
We note that Judge Aurigemma’s ruling on the commission’s motion
for attorney’s fees did use the term ‘‘violator’’ a number of times in describing
the public policy reasons in support of awarding attorney’s fees in cases
like this one. The court stated: ‘‘There are several important public policy
reasons for allowing attorney’s 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 attorney’s fees provision in the
enforcement statute is to remedy violations and to place the financial burden
upon the violator. . . . Moreover, allowing attorney’s fees in these cases
creates an incentive for violators to come into compliance.’’ (Citation omit-
ted; emphasis added; internal quotation marks omitted.)
13
In their counterclaim, the defendants alleged: ‘‘[The commission] has
brought the instant action in a further attempt to intimidate, harass and
annoy the [defendants] into complying with [its] unfounded demands.’’ In
count one, the defendants additionally alleged: ‘‘In bringing the instant
action, [the commission] has acted in excess of the powers conferred by
. . . General Statutes § 7-147a et seq. and the Regulations.’’