Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Stamford v. Ten Rugby Street, LLC

Appellate Court of Connecticut

March 22, 2016

CITY OF STAMFORD ET AL.
v.
TEN RUGBY STREET, LLC

         Argued October 19, 2015.

          Action for, inter alia, a temporary and permanent injunction, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Hon. Edward R. Karazin, Jr., judge trial referee; judgment for the plaintiffs, from which the defendant appealed to this court.

          SYLLABUS

         The defendant excavation company appealed to this court from the judgment of the trial court granting the request by the plaintiffs, the city of Stamford and its zoning enforcement officer, for, inter alia, a permanent injunction to prevent the defendant from operating crushing devices on its property in the city's general industrial zone, without first obtaining a special exception from the city's zoning board to do so. The plaintiffs had alleged that the defendant failed to comply with a cease and desist order requiring it to cease the rock crushing operation, a recycling preparation operation, and a material transfer site in violation of certain of the city's zoning regulations. The defendant claimed that it had been using its property as a contractor's material and equipment storage yard, which was a permitted use as of right in a general industrial zone. The court concluded that the defendant's crushing activity was barred in the general industrial zone, that its primary business was recycling large amounts of other contractors' excavation, construction and demolition material by crushing and shredding it into a marketable product, that the defendant had conducted a recycling preparation operation without the required special exception, that the defendant's use of its property was not a valid nonconforming use, and that a contractor's material and equipment storage yard was for the storage, rather than processing, of material. The court ordered, inter alia, that the defendant cease its operation of a rock crushing enterprise or preparation recycling operation without a special exception. On appeal to this court, the defendant claimed that the trial court incorrectly interpreted the zoning regulations, and violated its rights to due process by exceeding the scope of the cease and desist order in issuing an injunction that went beyond the relief the plaintiffs had sought. Held :

         1. The defendant could not prevail on its claim that the trial court incorrectly interpreted certain of the city's zoning regulations when it found that the crushing of non-rock materials was not permitted in the general industrial zone where the defendant's property was located, that the defendant's primary business was crushing or sorting excavation, construction and demolition material for resale, and that its use of its property was not permitted as a prior existing use:

a. Contrary to the defendant's claim, the use of its property as a contractor's material and equipment storage yard did not include the crushing of non-rock materials, and, although the city's zoning regulations did not define a contractor's material and equipment storage yard, because crushing was barred elsewhere in the zoning regulations, this court inferred that the zoning regulations would bar it in a contractor's material and equipment storage yard; moreover, the special exception for excavation required by the zoning regulations further supported the trial court's conclusion that crushing of non-rock material was barred in a contractor's material and equipment storage yard, and this court did not need to reach the defendant's claim that crushing of non-rock materials was permissible as an accessory use in a contractor's yard, as an accessory use must be dependent on the defendant's principal or main use, which the trial court found was the recycling of large amounts of other contractors' excavation, construction and demolition material by crushing and shredding it into a marketable product.

b. The trial court properly found that the defendant had not complied with the requirement in the city's zoning regulations that it obtain a special exception and follow other regulatory requirements for a recycling preparation operation, that court's factual findings having indicated that the defendant's primary business was crushing solid waste materials for resale.

c. The defendant's use of its property did not precede the enactment of the city's zoning regulations, as the defendant did not provide any reference that its use of the property had been permissible before the applicable zoning regulation took effect, and a change in the definition of a recycling preparation operation did not demonstrate that the defendant's use of its property had previously been permitted.

         2. The trial court's order permanently enjoining the defendant from operating crushing devices and processing excavation materials on its property did not exceed the scope of the plaintiffs' cease and desist order or violate the defendant's rights to due process, as the defendant was both aware that the zoning enforcement officer had interpreted the regulations to bar all crushing, and on notice that it was barred from operating a recycling preparation operation and could be barred from crushing construction and demolition materials; moreover, the court acted within its discretion in requiring the removal of crushers from the defendant's property, as the zoning enforcement officer had testified that removal of the crushers was the only way to make the defendant cease crushing rocks.

         Thomas M. Cassone, for the appellant (defendant).

         James V. Minor, special corporation counsel, with whom, on the brief, was Kathryn Emmett, director of legal affairs, for the appellees (plaintiffs).

         Keller, Mullins and Schaller, Js. SCHALLER, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 51] SCHALLER, J.

          The defendant, Ten Rugby Street, LLC, appeals from the judgment of the trial court ordering the defendant to cease operation of a rock crushing enterprise or of a preparation recycling operation at 10 Rugby Street, Stamford (property), and issuing a permanent injunction preventing the defendant from operating any crushers on the property without a special exception. On appeal, the defendant claims that the trial court (1) failed to interpret or apply the Stamford zoning regulations (regulations) correctly, and (2) violated the defendant's due process rights by exceeding the scope of the cease and desist order in issuing an injunction that went beyond the relief requested by the plaintiffs, the city of Stamford and James J. Lunney III, zoning enforcement officer for the city of Stamford. We affirm the judgment of the trial court.

          [164 Conn.App. 52] The following facts, as found by the court, and procedural history are relevant to our discussion. On June 21, 2010, Lunney issued a cease and desist order to the defendant.[1] The order required in part that the defendant " was to cease a rock crushing operation, a recycling preparation operation and a material transfer site." [2]

         On September 20, 2011, the plaintiffs filed a verified complaint, alleging that the defendant had failed to comply with the cease and desist order. The court held a hearing over three days during which it heard testimony from Lunney, Antonio Vitti, Sr., owner of the defendant, and several residents of neighboring properties. The court also admitted numerous exhibits, including photographs and videos of the activities conducted on the property. The court issued a memorandum of decision on April 30, 2014. It summarized the facts, in relevant part, as follows:

" Mr. Vitti, Sr., has been in business in the city of Stamford since 1967 [hereinafter Vitti and his associated companies, including the defendant, Ten Rugby Street, LLC, are] collectively called [Vitti].[3] [Vitti] rented vehicles, sold fill, trap rock, and accepted and stored and separated excavation materials from others. He also sold the separated and reclaimed materials. He was a licensed excavator. In 1976, [Vitti] purchased M-G [164 Conn.App. 53] [general industrial zone] property at 35 Harbor Street, and continued his same operation there until 1979, when he expanded into the abutting 10 Rugby Street lot pursuant to a lease with Gotham Technology . . . . In 1998 [Vitti] purchased 10 Rugby Street and continued the same operations, and leased back a part of the building portion of the premises to Gotham. . . .

" Throughout, [Vitti] excavated [his] own materials and stored and separated them on-site, as well as accepting the materials of others; and with both activities separated, stored and sold them. The primary materials excavated, accepted, separated and stored by the defendant have been road building and construction site materials such as blacktop, concrete, bricks, gravel, dirt, sand and fill."

         The plaintiffs asserted at trial that the defendant's activities included crushing both rock and non-rock materials in violation of the regulations, and operation of a recycling preparation operation, which required a special permit. The defendant maintained that it was not in violation of the zoning regulations.

         The court granted the plaintiffs' request for a permanent injunction. The court concluded that the defendant's actions were barred on several grounds. It found that (1) any " crushing" is barred in the zoning district in question, an M-G zone; (2) the " primary business" of the defendant is " recycling large amounts of other contractors' excavation, construction and demolition material by crushing and shredding this material into a marketable product such as gravel or clean fill" (emphasis in original); (3) the defendant conducted a " recycling preparation operation" as defined by § 82.1 of the regulations, without the required special exception; (4) the defendant's use was not a valid nonconforming use; and (5) a contractor's material and equipment storage yard is for storage of material, rather than for processing it. It determined that it would not [164 Conn.App. 54] issue a fine, as the defendant had not wilfully violated the regulations, but it granted a permanent injunction " requiring the defendant, Ten Rugby Street, LLC, to comply with zoning regulations at the Ten Rugby Street property; to cease the operation of any crusher on Ten Rugby Street; to comply with the cease and desist order dated [June 21, 2010], to wit: that the said defendant cease to illegally utilize, or to permit to be so utilized, the premises located at 10 Rugby Street to operate a rock crushing enterprise or to conduct a preparation recycling operation without a special exception; and a permanent injunction from continuing violations of zoning regulations." We will set forth further facts as necessary.

         Following the trial court's decision, the defendant appealed to this court. The defendant filed a motion for articulation, which the trial court denied.[4] This court granted review of the trial court's order denying the motion, and subsequently denied the requested relief.

         On appeal, the defendant claims that the trial court (1) failed to interpret or apply the regulations correctly, and (2) violated the defendant's due process rights by exceeding the scope of the cease and desist order in issuing the injunction.[5] In considering the first issue, [164 Conn.App. 55] we consider whether the defendant's primary business, as found by the trial court, is permitted on a " contractor's material and equipment storage yard and building," or any other use category permitted as of right in Stamford. We next consider whether the defendant's primary business is specifically prohibited by the zoning regulations because it constitutes operation of a recycling preparation operation without a special exception. Finally, we consider whether the defendant's primary business is permitted as a prior existing use. We then turn to the defendant's claim that the trial court violated the defendant's due process rights by exceeding the cease and desist order and complaint.

         I

         INTERPRETATION OF ZONING REGULATIONS

         The defendant claims that the court misinterpreted the regulations. We disagree. At the outset, we identify [164 Conn.App. 56] the applicable standard of review. As the interpretation of regulations poses a question of law, our review is plenary. See Driska v. Pierce, 110 Conn.App. 727, 732, 955 A.2d 1235 (2008). Where the trial court has made findings of fact, however, " our review is limited to deciding whether such findings were clearly erroneous." (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 200, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008).

         We next set forth the relevant legal standards. " [Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . ." (Internal quotation marks omitted.) Thomas v. Planning & Zoning Commission, 98 Conn.App. 742, 745, 911 A.2d 1129 (2006). " Our Supreme Court has instructed that courts should avoid interpretations that could result in absurd [and] unworkable . . . results." (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 24, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).

         The parties agree that the regulations are permissive in character. Where " [t]he regulations are permissive in character . . . [t]he uses which are permitted in each type of zone are spelled out. Any use that is not permitted is automatically excluded." Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958). The regulations classify uses of property as permitted uses or uses subject to approval by the Zoning Board of Appeals, also known as special exceptions. Stamford Zoning Regs., art. III, § 5. At trial, Lunney also described permitted uses as uses " as of right," and explained that while property owners " should" get a use permit when [164 Conn.App. 57] they change the use of their property from one permitted use to another, there was generally no reason not to issue a use permit if they met other zoning requirements. According to the regulations, special exceptions, on the other hand, " shall be granted by the reviewing board only upon a finding that the proposed use or structure or the proposed extension or alteration of an existing use or structure is in accord with the public convenience and welfare after taking into account [a variety of considerations, including location, nature of the use, traffic patterns, the nature of the surrounding area, and the Master Plan of the City of Stamford]." Stamford Zoning Regs., art. V, § 19, 3.2.

         A

         Permitted Uses

         The defendant argues that the court was incorrect in finding that crushing of non-rock materials such as concrete, blacktop, and cement (crushing non-rock materials), one aspect of its primary business as found by the trial court, is not within any of the permissible use categories for the zone in which the property is located. The trial court found that the property is situated in an M-G (general industrial) district, although it abuts on residential property.[6] Our primary inquiry, therefore, is whether any use listed for the general industrial district would permit crushing non-rock materials. As we explain below, we make this determination by considering the definition of " contractor's material and equipment storage yard and building" in the regulations, other parts of the regulations, the testimony of Lunney, and case law. See Vivian v. Zoning Board of Appeals, 77 Conn.App. 340, 345, 823 A.2d 374 (2003) (" [a] court must interpret a statute as written . . . [164 Conn.App. 58] and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation" [internal quotation marks omitted]); Balf Co. v. Planning & Zoning Commission, 79 Conn.App. 626, 635-36, 830 A.2d 836 (" the position of the municipal land use agency is entitled to some deference" [internal quotation marks omitted]), cert. denied, 266 Conn. 927, 835 A.2d 474 (2003); Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 276, 545 A.2d 530 (1988) (" [w]here a statute or regulation does not define a term, it is appropriate to focus upon its common understanding as expressed in the law" [internal quotation marks omitted]).

         The defendant maintains that it is using the property as a " contractor's material and equipment storage yard and building," which is a permitted use as of right in a general industrial district, as well as in C-S (shorefront commercial) and M-L (light industrial) districts.[7] Stamford Zoning Regs., art. III, § 4 A. The trial court found that use of the property as a contractor's material and equipment storage yard and building would not include crushing non-rock materials. The regulations do not define a " contractor's material and equipment storage yard and building" ; we, therefore, look to the plain language of the term, the term's place in the regulatory scheme, and interpretation of the term by the city of Stamford and by other courts in order to determine whether crushing non-rock materials would be permitted. Our analysis of whether crushing non-rock materials would be permitted in a contractor's material and equipment storage yard and building informs our broader determination of whether crushing non-rock materials is permitted in any permissible use category.

          [164 Conn.App. 59] We turn first to the plain language of the phrase, " contractor's material and equipment storage yard and building." The defendant argues that the term is ambiguous because it " involves a conjunction and is unpunctuated . . . ." The defendant further argues that one interpretation is that the word storage is only modified by equipment, such that the term could be separated into " 'contractor's material yard'" and " 'contractor's equipment storage yard' . . . ." The defendant maintains that this construction would impose no limitation on what the contractor could do with its material on-site. We do not perceive the same ambiguity. If the term contained commas, e.g., " contractor's material, and equipment storage, yard and building" or " contractor's material, and equipment storage yard and building," it would be susceptible to the defendant's interpretation. In the absence of these commas, we conclude that the meaning is clearly a yard and building used by a contractor to store materials and to store equipment. Storage does not suggest that crushing large amounts of material would be contemplated. Henceforth, we refer to a " contractor's material and equipment storage yard and building" as a " contractor's yard."

         Other parts of the regulatory scheme support the conclusion that crushing non-rock materials is not permitted in a contractor's yard, or in any other permitted use within a general industrial district. First, the regulations specifically note that crushing is barred in a sand and gravel pit or in a sand and gravel bank with the blanket statement, " no crushing." [8] The defendant asserts that the trial court erred in concluding that crushing non-rock materials would be barred in a contractor's yard based on its being barred in these two [164 Conn.App. 60] use categories. It asserts that the court impermissibly extended the ban on crushing in these two use categories to all of Stamford, despite Lunney's concession that the two categories were inapplicable to the defendant. In contrast, we find the court's interpretation persuasive; we conclude that the regulations specifically bar crushing in these two areas because they are the two areas in which crushing was most likely to occur, and we infer from this that the regulations bar crushing non-rock materials elsewhere.

         The special exception required for excavations provides further support for the conclusion that crushing of non-rock materials is barred in a contractor's yard, and in a general industrial zone. The defendant contends that the court could not have used the special exception as grounds for barring crushing non-rock materials on the property because the trial court could not have concluded that the defendant's use constituted excavating on the property. According to the defendant, Lunney testified that the defendant was not operating an excavation site on the property, and therefore the trial court should not have relied on the requirements for an excavation site. We interpret the import of the special exception differently than the defendant does, in accordance with the trial court's interpretation. Pursuant to the regulations, any excavation of more than one hundred cubic yards not already permitted under a building permit requires a permit issued by the zoning enforcement officer. Stamford Zoning Regs., art. IV, § 15 A. The regulations require an excavator who intends to crush rocks to apply for a special permit, and otherwise bar " processing of excavated materials on the premises except with a simple bar type screen to remove oversize aggregates and used only for loading of trucks." [9] Id., § 15 A 3 a. They further state that " [n]o [164 Conn.App. 61] material brought to the site shall be processed by crushing." Id., § 15 A 5. We conclude that the specific requirements this section of the regulations places on " rock crushing" and the processing of other excavation materials by crushing provides further support that crushing non-rock materials is barred.

         These sections of the regulations (the bans on crushing in other uses and the strict limitations on rock crushing while excavating) suggest that crushing non-rock materials is barred. Each provides further support for the conclusion that crushing non-rock materials is not permitted in a contractor's yard, or in another use area which does not clearly state that crushing non-rock materials is permitted.

          We also look to the interpretation of the zoning authorities, principally the zoning enforcement officer. Lunney testified that in a contractor's yard, the defendant could sell crushed stone that he had bought elsewhere, but he could not crush items or change their shape. He testified: " And he is not--he is not a contractor where he's buying something and selling it. He's making the product from a method that he is not allowed to use on that site."

         Lunney explained that he had not issued a cease and desist order earlier because he had not witnessed a [164 Conn.App. 62] violation taking place until recently. He also testified that he required the defendant to remove the rock crushing equipment in the cease and desist order because it was the only way to ensure that the defendant did not crush any rocks.[10] We conclude that Lunney's interpretation, as found by the trial court, provides further support for our conclusion that crushing non-rock materials ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.