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Ogden v. Zoning Bd. of Appeals of Columbia

Appellate Court of Connecticut

June 2, 2015

ARTHUR OGDEN
v.
ZONING BOARD OF APPEALS OF THE TOWN OF COLUMBIA

Argued February 17, 2015

Page 987

[Copyrighted Material Omitted]

Page 988

Appeal from the decision of the defendant upholding an order issued to the plaintiff by the zoning enforcement officer of the Town of Columbia to cease and desist certain activities on certain of the plaintiff's real property, brought to the Superior Court in the judicial district of Tolland and tried to the court, Hon. Lawrence C. Klaczak, judge trial referee; judgment sustaining the appeal; thereafter, the court denied the defendant's motion to reargue, and the defendant, on the granting of certification, appealed to this court.

Reversed; judgment directed.

SYLLABUS

The plaintiff appealed to the trial court from the decision of the defendant, the Zoning Board of Appeals of the Town of Columbia, upholding a cease and desist order that had been issued by the town zoning enforcement officer. After receiving a prior cease and desist order, the plaintiff filed an application for a special permit exception and for site plan approval so that he could operate a construction/contractor's yard on the commercially zoned portion of his property, which application was approved by the town zoning commission. Thereafter, the zoning enforcement officer issued a second cease and desist order because the plaintiff continued to use his property as a construction/contractor's yard without satisfying the conditions of the site plan. After the board upheld the second cease and desist order, the trial court sustained the plaintiff's appeal on the grounds that the town zoning regulations concerning construction/contractor's yards were ambiguous and that the record did not contain substantial evidence that the plaintiff was unlawfully operating such a yard on his property. On the board's certified appeal to this court, held :

1. The trial court erred in concluding that the zoning regulations concerning construction/contractor's yards were unconstitutionally vague as applied to the plaintiff and, therefore, enforceable:

a. Contrary to the board's contention, the issue of the vagueness of the regulations was properly before the trial court, even though the plaintiff did not raise the claim before the board, as the claim was of constitutional magnitude and it would have been pointless for the plaintiff to raise the claim before the board because it lacked the authority to determine constitutional questions; moreover, even though the vagueness claim was not expressly stated in the plaintiff's appeal to the trial court, it was raised in his trial brief, there was no indication in the record that the board objected to the plaintiff raising the claim, and the board had the opportunity to respond to the claim in its own trial brief but chose not to do so.

b. The zoning regulations were not unconstitutionally vague as applied to the plaintiff simply because the term construction/contractor's yard was not defined therein, the plaintiff had adequate notice that his property was governed by the regulations in light of the prior cease and desist order and his subsequent application for a special use exception that acknowledged that he intended to use the property as a construction/contractor's yard, and the plaintiff's claim that the cease and desist order was issued as a form of retribution for certain comments made by the plaintiff to the commission had no merit, as the plaintiff failed to present evidence that he had been the victim of arbitrary and discriminatory enforcement.

2. Contrary to the trial court's conclusion, there was substantial evidence in the record that the plaintiff was operating a construction/contractor's yard without a certificate of zoning compliance sufficient to support the board's decision to uphold the second cease and desist order: the board heard evidence that the plaintiff was storing equipment on his property and taking it to construction jobs elsewhere, that he was employing workers who would show up at his property and thereafter go to a job site, that he had a sign on his property indicating that it was a construction business, that witnesses observed trucks entering and leaving the property and certain construction equipment being used on the property, and that the zoning enforcement officer repeatedly had communicated with the plaintiff in order to secure his compliance with the approved site plan; moreover, the plaintiff's witness before the board had provided contradictory evidence that the plaintiff was developing the construction/contractor's yard and also was engaged in farm and nursery uses on the property, which evidence the court improperly relied on it substituting its judgment for that of the board.

Kenneth R. Slater, Jr., for the appellant (defendant).

George C. Schober, for the appellee (plaintiff).

DiPentima, C. J., and Keller and Flynn, Js. FLYNN, J. In this opinion the other judges concurred.

OPINION

Page 989

[157 Conn.App. 657] FLYNN, J.

The defendant, the Zoning Board of Appeals of the Town of Columbia (board), appeals from [157 Conn.App. 658] the judgment of the Superior Court sustaining the appeal of the plaintiff, Arthur Odgen, from the decision of the board upholding the cease and desist order of the town's zoning enforcement officer, John Valente. On appeal, the board claims that the court erred in concluding that (1) the regulations governing construction/contractor's yards were vague and therefore unenforceable, and (2) the board's decision upholding the cease and desist order was not supported by substantial evidence. We agree and reverse the judgment of the court.

The record reveals the following facts and procedural history. On May 1, 2009, Valente issued a cease and desist order to the plaintiff, informing him that he was impermissibly using the commercial portion of his real property located at 6 Cherry Valley Road in Columbia as a construction/contractor's yard. Part of the property falls within an area zoned for commercial use, while the remainder falls within an area zoned for residential use. The cease and desist order further informed

Page 990

the plaintiff that he could remedy the impermissible use of the commercial portion of his property by submitting an application under Section 31 of Columbia's zoning regulations. Sections 31.1 through 31.3 of the zoning regulations provide that a permit for a construction/contractor's yard may be issued for a commercially zoned property if an application for a special exception and a site plan are submitted by the property owner and approved by the Zoning Commission of the Town of Columbia (commission).

On June 5, 2009, the plaintiff filed an application for a special exception and site plan approval so that he could operate a construction/contractor's yard on the commercially zoned portion of his property. The plaintiff planned to use the construction/contractor's yard for " the outside storage of vehicles, equipment and trailers and a wholesale operation for the distribution of [157 Conn.App. 659] landscaping materials . . . ." The plaintiff also sought approval for " a sign to be located on the northeasterly corner of the [p]roperty, landscaping and buffering all as depicted on the [site plan]." The site plan required the plaintiff to " perform excavation, grading, stockpiling and earth removal as necessary to make the [p]roperty more suitable for the proposed uses." The commission approved the plaintiff's application and site plan on September 28, 2009, and the special exception permit for the construction/contractor's yard was recorded in the town land records.

On May 10, 2010, Valente issued a second cease and desist order to the plaintiff because the plaintiff was continuing to use his property as a construction/contractor's yard without satisfying the conditions of the site plan. The order informed the plaintiff that he was continuing to impermissibly use his property as a construction/contractor's yard and that, if he wished to " legally establish this use," he must " comply with the conditions of approval" as set forth in the site plan. The plaintiff appealed the order to the board and public hearings were held on the matter on June 24 and July 22, 2010. On August 26, 2010, in a four to one vote, the board upheld the order and subsequently issued a letter to the plaintiff informing him that the order had been upheld because " the records showed that [the plaintiff] was operating a contractor's yard . . . prior to receiving a Certificate of Zoning Compliance."

In September, 2010, the plaintiff appealed the board's decision to uphold the cease and desist order to the Superior Court for the judicial district of Tolland. The plaintiff filed an amended appeal on November 14, 2011, alleging that the board's decision was " illegal, arbitrary, and an abuse of discretion" and that the board's actions amounted to an unconstitutional taking of his property. The court, Hon. Lawrence C. Klaczak, judge trial referee, heard the appeal on March 28, 2013. On July 16, [157 Conn.App. 660] 2013, the court issued a memorandum of decision in which it sustained the plaintiff's appeal on the grounds that the construction/contractor's yard regulations were ambiguous and that the record did not contain substantial evidence that the plaintiff was unlawfully operating a construction/contractor's yard on his property. This certified appeal followed. Additional facts will be set forth as necessary.

I

The board first claims that the court erred in concluding that the regulations governing construction/contractor's yards were vague and therefore unenforceable. Before discussing the substance of this claim, we find it necessary to address whether the board has correctly characterized the nature of the plaintiff's argument before the court and the court's holding. The plaintiff first raised the issue of

Page 991

vagueness in his trial brief. He began his argument by stating that " [t]he zoning regulations in this matter do not contain a definition of [construction/contractor's yard] and are therefore ambiguous." He also alleged that, during the public hearings, " [n]o legal definition or otherwise was submitted [for a construction/contractor's yard] and [Valente] and [the board] submitted their own subjective definitions. Once again, for these reasons, [the board's] decision to uphold the cease and desist [order] was unreasonable, arbitrary, illegal and an abuse of discretion."

The plaintiff then went on to argue that, if the zoning regulations were vague, they must be construed in his favor. He contended that " the definition of [construction/contractor's yard] is vague and ambiguous because no definition exists within the zoning regulations. To hold nonexisting terms against the [plaintiff] would result in violation of [his] due process rights under both the United States and Connecticut Constitutions and [157 Conn.App. 661] would constitute a taking of [his] property rights without compensation, thereby depriving [him] of not only [his] property rights but also of the value, reasonable use and enjoyment of [his] property without due process of law. . . . Accordingly, any ambiguity should be construed against the ...


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