TOWN OF WETHERSFIELD ET AL.
v.
PR ARROW, LLC
Argued
October 15, 2018
Procedural
History
Appeal
from the decision by the named plaintiff upholding an order
issued to the defendant by the plaintiff zoning enforcement
officer of the town of Wethers-field to cease and desist
certain activities on certain of the defendant's real
property, brought to the Superior Court in the judicial
district of Hartford, where the matter was transferred to the
Land Use Litigation Docket and tried to the court,
Berger, J.; thereafter, the court granted in part
the plaintiffs' motion to preclude certain evidence;
judgment for the plaintiffs, from which the defendant
appealed to this court; subsequently, the court, Berger,
J., denied the defendant's motion to dismiss and
granted the plaintiffs' motion for contempt, and the
defendant filed an amended appeal. Appeal dismissed in
part; affirmed.
Kevin
J. Burns, for the appellant (defendant).
Thomas
A. Plotkin, with whom, on the brief, was John W. Bradley,
Jr., for the appellees (plaintiffs).
Keller, Elgo and Sullivan, Js.
OPINION
ELGO,
J.
In this
zoning enforcement action, the defendant, PR Arrow, LLC,
appeals from the judgment of the trial court granting
permanent injunctive relief in favor of the plaintiffs, the
town of Wethersfield (town) and its zoning enforcement
officer, Justin LaFountain.[1] On appeal, the defendant claims
that (1) the court lacked subject matter jurisdiction in
multiple respects, (2) the court improperly applied the
doctrine of exhaustion of administrative remedies, (3) the
zoning regulation in question is void for vagueness, (4) the
court improperly interpreted that regulation, (5) the court
improperly granted the permanent injunction, (6) the
injunction lacked sufficient clarity and definiteness, (7)
the court abused its discretion in imposing daily fines
pursuant to General Statutes § 8-12, (8) the court
abused its discretion in awarding costs and attorney's
fees pursuant to § 8-12 without making a finding that it
wilfully violated the zoning regulations and (9) the court
improperly found the defendant in contempt. We dismiss as
moot the defendant's jurisdictional challenge with
respect to the standing of LaFountain. We affirm the judgment
of the trial court in all other respects.
This
appeal concerns activities conducted on real property known
as 61 Arrow Road in Wethersfield (property) that at all
relevant times was owned by the defendant. The property is
located in the ‘‘Business Park (BP)''
zoning district and is approved for office and industrial
use. Principal and accessory uses permitted in the BP zone
are specified in §§ 5.2 and 5.3, respectively, of
the Wethersfield Zoning Regulations (regulations).
At all
relevant times, LaFountain served as the town's zoning
enforcement officer. In that capacity, he acted as the agent
of the town's Planning and Zoning Commission
(commission). See Piquet v. Chester, 306 Conn. 173,
176 n.1, 49 A.3d 977 (2012) (‘‘[t]he zoning
enforcement officer acts as the agent of the local planning
and zoning commission''); Wethersfield Zoning Regs.,
art. X, § 10.3.A.1 (‘‘[t]hese Regulations
shall be enforced by the Zoning Enforcement Official as the
Commission's duly authorized agent for enforcement of
these Regulations''). By letter dated November 18,
2015, LaFountain issued a cease and desist order (order) to
the defendant regarding certain activities on the property.
That order stated in relevant part: ‘‘This letter
is to inform you that [the property] is inviolation of the
[regulations]. Section 5.2.H.5 . . . states that
‘trucking or freight operations with complete visual
screening of equipment and materials' requires a Special
Permit from the [commission]. Other commercial vehicles on
the property must be accessory to uses within the offices and
industrial bays. You are hereby ordered to Cease and
Desist allowing trucking or freight operations to be
permitted on the property. You may either appeal this order
to the Zoning Board of Appeals or comply within [fifteen]
days of receipt. . . . If you wish to maintain the trucking
or freight operations, a Special Permit would be required
from the [commission]. Failure to comply with this order will
leave this Department no alternative but to begin issuing
[$100] Citations for every day the property is in violation.
. . . In addition to any fines or penalties imposed therein,
the applicable section(s) of the [regulations] may be
enforced by injunctive procedure in the Superior
Court.''[2] (Emphasis in original.)
On
December 2, 2015, the defendant filed an appeal of that order
with the town's Zoning Board of Appeals (board). The
‘‘appeal application'' form completed by
the defendant asks applicants to ‘‘[p]lease
describe your appeal (please include your documentation
backing up your appeal).'' In response to that query,
the defendant attached a document that enumerated nine
distinct grounds of appeal.[3] Before the board could hold a
public hearing on the matter, the defendant formally withdrew
its appeal of the order by letter dated January 22, 2016.
When
activities allegedly continued on the property in
contravention of the order, the plaintiffs commenced the
present action pursuant to § 8-12.[4] The basis of that
action was twofold in nature. First, the plaintiffs alleged
that the defendant violated § 5.2.H.5 of the regulations
due to ‘‘ongoing ‘trucking or freight
operations' at the [p]roperty without the required
special permit . . . .''[5]Second, the plaintiffs
alleged that the defendant violated the regulations by
permitting the parking and storage of commercial vehicles on
the property that ‘‘were not accessory to any use
by a tenant.''[6] With respect to those two grounds, the
plaintiffs specifically alleged that ‘‘the
current violations of the [r]egulations at the [p]roperty
include: [a] an illegal trucking and freight operation; [b]
the parking and storage of several commercial vehicles that
are not associated with any business operating at this
[p]roperty; [c] the frequent ingress and egress of tractor
trailers, truck tractors, semitrailers, and/or other large
commercial vehicles to-from the [p]roperty, including such
vehicles that are not associated with any tenant;[d] the
illegal parking of tractor trailers, truck tractors,
semitrailers, and/or other large commercial vehicles at the
[p]roperty for compensation.'' The plaintiffs further
alleged that those violations constituted ‘‘a
public nuisance due to the presence of and traffic created by
tractor trailers, truck tractors, semitrailers, and/or other
large commercial vehicles, and the emission or odors and
noise.'' In their prayer for relief, the plaintiffs
requested, inter alia, injunctive relief ordering the
defendant to cease and desist from the aforementioned
activities, a civil penalty of $2500, a civil fine to be
imposed on a daily basis ‘‘until the violations
are remedied, '' and an award of costs and
attorney's fees pursuant to § 8-12.
On June
23, 2016, the defendant filed its answer, in which it denied
that any of the alleged violations had transpired on the
property. The defendant also raised six special defenses,
[7]
which the plaintiffs denied in their entirety. Days later,
the case was transferred by order of the court to the land
use litigation docket in the judicial district of Hartford
pursuant to General Statutes § 51-347b (a). On June 27,
2016, the plaintiffs filed a certificate of closed pleadings.
Prior
to the filing of the defendant's answer, the plaintiffs
had filed a motion in limine, in which they sought to
preclude ‘‘all evidence, whether testimonial or
documentary, pertaining to any issue which was included in
the defendant's appeal of the [order], which appeal was
filed with the [board] but withdrawn prior to an evidentiary
hearing by that municipal board.'' In that motion,
the plaintiffs argued that, ‘‘[h]aving failed to
first proceed with an available administrative process
provided . . . by statute, the defendant should not be
permitted to present any such evidence or argument in this
case.'' Relying principally on Greenwich v.
Kristoff, 180 Conn. 575, 430 A.2d 1294 (1980), the
plaintiffs claimed that ‘‘[s]ince the defendant
chose to withdraw its [board] appeal of the [order] prior to
that evidentiary hearing, this court should prohibit the
defendant from now asserting [its] purported defenses in this
zoning enforcement litigation.'' By order dated
October 13, 2016, the court ruled that ‘‘[t]he
issues in the motion [in limine] will be taken up at
trial.''
A two
day court trial was held in January, 2017. At its outset, the
court addressed the motion in limine. The court explained
that it was granting the motion insofar as the defendant
sought to present evidence on special defenses that had been
raised in the defendant's appeal to the board. The court
nonetheless advised the parties that it would consider such
evidence to the extent that it was relevant to the balancing
of the equities inherent in injunctive relief.
At
trial, more than 100 exhibits were admitted into evidence,
including dozens of photographs depicting what generically
may be described as commercial trucks parked on the
property.[8] In addition, two witnesses
testified-LaFountain and John A. Tartaglia, the manager and 1
percent owner of the defendant. In his testimony, Tartaglia
explained that the property was 5.5 acres in size and
contained a 41, 000 square foot building (building)
‘‘divided into twelve commercial bays and an
office wing . . . .'' He also testified that the
property contained three parking lots located on the
northerly, easterly, and southerly sides of the building.
Tartaglia indicated that the northerly parking lot located to
the rear of the building was only partially paved; the
remainder was gravel. The majority of the photographs
admitted into evidence depict commercial trucks parked on
that rear lot.
In his
testimony, LaFountain confirmed that the order was issued in
response to the presence of those trucks on the property.
LaFountain testified that he had received multiple complaints
about that issue, including a written complaint from a
neighbor who resided at an abutting condominium
complex.[9] Significantly, Tartag-lia admitted in his
testimony that ‘‘there were trucks parking on the
property . . . that were not tenants of physical space in the
building, but would park trucks in the back, licensed
commercial vehicles. Commercial vehicles by definition would
include any tractor-trailer or object that has a commercial
plate in the state of Connecticut. I do not deny
this.'' In its memorandum decision, the court found
that Tartaglia had ‘‘devised [a] ‘tag'
system . . . to allow nonbuilding tenants to store trucks on
[the] property.''[10] (Citation omitted.) The court
emphasized that the defendant's rent rolls, which also
were admitted into evidence, documented various
‘‘enterprises storing trucks [on the property
that were] not renting space within the buildings, ''
including ‘‘a large number of Budget
trucks'' that are plainly visible in the photographs
in evidence. At trial, Tartaglia admitted that only three of
the thirteen tenants with parking privileges listed on the
defendant's September, 2015 rent roll were renting office
or industrial space in the building at that time.
The
court also was presented with evidence, which it acknowledged
in its memorandum of decision, that subsequent to the
issuance of the order, Tartaglia sought to enter into lease
agreements with tenants that were not renting space in the
building. The deposition testimony of Melissa Ahmetovic was
admitted as a full exhibit at trial. In that testimony,
Ahmetovic confirmed that she operated a business with her
husband known as M&A Express Transport, LLC, a
‘‘trucking company'' that transported
goods across the country. In 2015, M& A Express
Transport, LLC, began renting space from the defendant to
store its trucks on the property. Ahmetovic testified that,
after LaFountain issued the order, Tartaglia contacted her
and ‘‘said that he's going to make out a
lease agreement stating that [Ahmetovic had] an office in
there, there will be an office . . . on the last floor of the
building . . . just in case the [plaintiff] comes after him,
to state that [she did] have an office there, that [she does]
work and everything, just in case if the town comes after
him.'' Appended to that deposition as an exhibit was
a document titled ‘‘Office Lease'' that
identified Ahmetovic and her husband as the tenant, and
described the use as ‘‘General Office
Use'' for which ‘‘Overnight
Parking'' was permitted, commencing on December 1,
2015.[11] Ahmetovic testified that she never asked
to rent office space on the property and thereafter never
used an office on the property.[12] Although Tartaglia
professed a lack of knowledge about the actual operations
conducted on the property or the specific tenants that were
storing trucks thereon, the court expressly found that
testimony not credible in its memorandum of decision.
Tartaglia also admitted in his testimony that he had
forbidden the town's zoning enforcement officers from
entering the property.[13]
At
trial, the parties offered contrasting interpretations of
§ 5.2.H.5 of the regulations. Tartaglia opined that the
phrase ‘‘trucking or freight operations,
'' as used in that regulation, did not apply to the
mere parking and storage of commercial vehicles, but rather
required an active trucking operation to be conducted on the
property.[14] Tartaglia testified that his
interpretation was predicated on his ‘‘years
involved in the real estate business'' and conceded
that he did not examine any of the resources specified in
§ 2.2.B of the regulations.[15]
In his
testimony, LaFountain stated that he had consulted those
resources and also noted that § 2.3.C of the regulations
contains a definition of the term ‘‘commercial
vehicle, '' which includes ‘‘box
trucks'' and ‘‘tractor
trailers.''[16] After reviewing those resources,
LaFountain concluded that ‘‘a trucking or a
freight operation essentially is an activity where the main
operation is the transportation of materials using trucks. If
your business is using trucks to move materials or freight .
. . it's a trucking or freight operation.''
LaFountain also emphasized that ‘‘the parking of
trucks is . . . a very large facet of a trucking operation. .
. . [W]hen you have a truck storage yard, for lack of a
better term, it's where the primary piece of equipment
that you use in a trucking operation is being
stored.'' For that reason, he concluded that the
parking and storage of commercial vehicles by entities
engaged in the transportation of goods constituted
‘‘trucking or freight operations'' on the
property, for which a special permit was required pursuant to
§ 5.2.H.5 of the regulations. LaFountain further opined
that the parking and storage of commercial trucks by tenants
that were not engaged in a principal industrial or office use
on the property could not be deemed an accessory use under
the regulations.
In its
April 20, 2017 memorandum of decision, the court found that
the plaintiffs had ‘‘clearly proved by a
preponderance of the evidence that the defendant is engaging
in a trucking or freight operation without a special permit
in violation of the town's zoning regulations.
Notwithstanding Tartaglia's protestations and his allowed
testimony on equitable considerations, there is no evidence
that weighs in the defendant's favor.'' The court
thus granted the plaintiffs' request for permanent
injunctive relief and ordered: ‘‘[T]he defendant
must comply with the town's regulations. If it seeks to
conduct such trucking and freight operations on the property,
it must first obtain a special permit to do so in accordance
with the town's zoning regulations. Hence, all trucking
operations not associated with a specific tenant business use
on the property . . . or any trucking and freight operations
being conducted without a special permit must immediately
cease. Further, in accordance with § 8-12, this court
imposes a civil fine of $2500 for the violation of the cease
and desist order as well as a civil fine of $50 per day from
January 22, 2016, to the date of this order, together with
costs and attorney's fees to be established at a hearing
at a later date.'' In addition, the court noted that
‘‘[t]o the extent there is a question on an
accessory use, this court will retain jurisdiction.''
From that judgment, the defendant appealed to this court on
May 3, 2017.
The
plaintiffs subsequently filed a motion for contempt with the
trial court, alleging in relevant part that the defendant
‘‘continues to operate trucking or freight
operations on the property, and continues to allow the
parking or storage of trucks without a special permit in
violation of the [regulations] and in violation of this
court's order that [it] immediately cease the illegal
activity.'' The defendant filed an objection to that
motion, and the court held a hearing on July 6, 2017. By
memorandum of decision dated August 18, 2017, the court
granted the motion for contempt, finding that
‘‘the testimony and the evidence is clear that
the subject violations still exist.'' The court then
expressly ‘‘deferred the issue of monetary
penalties'' while the underlying matter was on
appeal, but noted that ‘‘[t]he evidence from this
proceeding will be included in that evaluation.'' The
defendant thereafter filed an amended appeal with this court
to encompass the trial court's ruling on the motion for
contempt.
I
The
defendant claims that the trial court lacked subject matter
jurisdiction in two respects. It first alleges that
‘‘because [the] plaintiff[s] did not plead an
accessory use violation, the court erred in making findings
and retaining jurisdiction thereon.'' The defendant
also argues that LaFountain lacked standing to sue on behalf
of himself or the town. Those contentions are equally
unavailing.
‘‘Subject
matter jurisdiction involves the authority of the court to
adjudicate the type of controversy presented by the action
before it. . . . [A] court lacks discretion to consider the
merits of a case over which it is without jurisdiction . . .
.'' (Internal quotation marks omitted.) Peters v.
Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d
448 (2005). ‘‘Jurisdiction of the subject matter
is the power [of the court] to hear and determine cases of
the general class to which the proceedings in question
belong. . . . A court has subject matter jurisdiction if it
has the authority to adjudicate a particular type of legal
controversy.'' (Internal quotation marks omitted.)
Metropolitan District v. Commission on Human Rights &
Opportunities, 180 Conn.App. 478, 485, 184 A.3d 287,
cert. denied, 328 Conn. 937, 184 A.3d 267 (2018).
‘‘Any determination regarding the scope of a
court's subject matter jurisdiction or its authority to
act presents a question of law over which our review is
plenary.'' Tarro v. Mastriani Realty, LLC,
142 Conn.App. 419, 431, 69 A.3d 956, cert. denied, 309 Conn.
912, 69 A.3d 308, 309 (2013). In addition, when a decision as
to whether a court has subject matter jurisdiction is
required, ‘‘every presumption favoring
jurisdiction should be indulged.'' (Internal
quotation marks omitted.) Novak v. Levin, 287 Conn.
71, 79, 951 A.2d 514 (2008).
A
The
defendant's first claim requires little discussion. The
plaintiffs brought this action pursuant to § 8-12, which
‘‘empowers [zoning enforcement] officers . . . to
take overt action in order to compel compliance with the
zoning laws.'' (Internal quotation marks omitted.)
Labulis v. Kopylec, 128 Conn.App. 571, 578 n.11, 17
A.3d 1157 (2011). As this court has observed,
‘‘[t]he purpose of § 8-12 is to provide a
means to enforce the zoning regulations and to prevent an
unlawful use'' of property. Stamford v.
Stephenson, 78 Conn.App. 818, 826, 829 A.2d 26, cert.
denied, 266 Conn. 915, 833 A.2d 466 (2003). Whether the
parking and storage of commercial vehicles by trucking
companies on the property constituted a valid accessory use
is a question that plainly falls within the scope of
authority conferred on the court by § 8-12. The court,
therefore, did not lack subject matter jurisdiction over that
issue.
While
the court generally is not permitted to decide issues beyond
those raised in the pleadings; see Lynn v. Bosco,
182 Conn.App. 200, 213, 189 A.3d 601 (2018); the plaintiffs
in their complaint raised the issue of whether the activities
in question constituted a valid accessory use.[17] Paragraph 6
of that pleading complains of ‘‘the existence of
. . . commercial vehicles at the property, which were not
accessory to any use by a tenant. . .
.''[18] Paragraph 8 then alleges in relevant
part that ‘‘[t]he current violations of the
regulations at the property include . . . [b] the parking and
storage of several commercial vehicles that are not
associated with any business operating at this property; [c]
the frequent ingress and egress of tractor trailers, truck
tractors, semitrailers, and/or other large commercial
vehicles to/from the property, including such vehicles that
are not associated with any tenant . . .
.''[19] Furthermore, in their prayer for relief,
the plaintiffs requested, among other things, injunctive
relief barring ‘‘the parking and storage of any
commercial vehicle not associated with any business operating
at this property . . . .'' Accordingly, the question
of whether the parking and storage of commercial vehicles on
the property constituted a valid accessory use properly was
at issue in this zoning enforcement action.
Although
the defendant argues that the court improperly retained
jurisdiction on that issue, it is well established that
‘‘a permanent injunction necessarily requires
continuing jurisdiction . . . .'' Hall v.
Dichello Distributors, Inc., 14 Conn.App. 184, 193, 540
A.2d 704 (1988); accord AvalonBay Communities, Inc.
v. Plan & Zoning Commission, 260 Conn. 232, 242
n.11, 796 A.2d 1164 (2002) (‘‘courts have
inherent power to change or modify their own
injunctions that is not limited by [General Statutes] §
52-212a'' [emphasis in original]); Conservation
Commission v. Price, 5 Conn.App. 70, 73, 496 A.2d 982
(1985) (‘‘the court retained continuing
jurisdiction through its original grant of a permanent
injunction to the town''). For that reason, we
conclude that the court, after granting a permanent
injunction to enjoin ‘‘all trucking
operations'' that are ‘‘conducted without
a special permit'' and are ‘‘not
associated with a specific tenant business use on the
property, '' properly retained jurisdiction
‘‘[t]o the extent there is a question on an
accessory use'' with respect to commercial vehicles
stored on the property.
B
The
defendant also argues that LaFountain lacks standing in the
present case. Because the defendant does not challenge the
standing of the town to maintain this zoning enforcement
action, that claim is moot.
In
DeRito v. Zoning Board of Appeals, 18 Conn.App. 99,
100, 556 A.2d 632 (1989), the defendant property owners
appealed to this court from the judgment of the trial court
in favor of the plaintiffs, the town of Middlebury and its
zoning enforcement officer. On appeal, the defendants
challenged the standing of the zoning enforcement officer.
This court declined to consider the merits of that
contention, stating: ‘‘[T]he defendants do not
challenge the standing of the plaintiff town of Middlebury .
. . . Thus, even without [the zoning enforcement officer] as
a party to the [action], the trial court had subject matter
jurisdiction . . . by virtue of the presence of the plaintiff
town of Middlebury.'' (Citations omitted.)
Id., 103. As a result, this court concluded that
‘‘the standing of [the zoning enforcement
officer] . . . presents no justiciable controversy on
appeal'' because ‘‘[n]o practical relief
can be granted to the defendants on this claim, and it is not
the province of appellate courts to decide questions
disconnected from the granting of actual relief or from the
determination of which no practical relief can
follow.'' Id., 103-104. The court thus
dismissed that part of the appeal. Id., 104.
That
logic applies equally to the present case. Here, the town is
a party to the zoning enforcement action brought against the
defendant pursuant to § 8-12. As in DeRito, the
defendant has not challenged the standing of that
municipality. Accordingly, the standing of LaFountain
presents no justiciable controversy in this appeal. See
id., 103-104. The portion of the defendant's
appeal challenging his standing, therefore, must be
dismissed.
II
We next
address the defendant's claim that the court improperly
applied the doctrine of exhaustion of administrative remedies
to its special defenses due to the defendant's withdrawal
of its appeal to the board. The applicability of that
doctrine implicates the subject matter jurisdiction of the
Superior Court; Piquet v. Chester, supra, 306 Conn.
179; and thus presents a question of law over which our
review is plenary. Financial Consulting, LLC v.
Commissioner of Ins., 315 Conn. 196, 208, 105 A.3d 210
(2015).
A
‘‘The
doctrine of exhaustion of administrative remedies is well
established in the jurisprudence of administrative law. . . .
Under that doctrine, a trial court lacks subject matter
jurisdiction over an action that seeks a remedy that could be
provided through an administrative proceeding, unless and
until that remedy has been sought in the administrative
forum. . . . In the absence of exhaustion of that remedy, the
action must be dismissed.'' (Internal quotation marks
omitted.) Republican Party of Connecticut v.
Merrill, 307 Conn. 470, 477, 55 A.3d 251 (2012); see
also Myers v. Bethlehem Shipbuilding Corp., 303 U.S.
41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938)
(‘‘no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed
administrative remedy has been exhausted'').
‘‘The exhaustion doctrine reflects the
legislative intent that such issues be handled in the first
instance by local administrative officials in order to
provide aggrieved persons with full and adequate
administrative relief, and to give the reviewing court the
benefit of the local board's judgment.''
(Internal quotation marks omitted.) Simko v. Ervin,
234 Conn. 498, 504, 661 A.2d 1018 (1995); see also
Owner-Operators Independent Drivers Assn. of America v.
State, 209 Conn. 679, 692, 553 A.2d 1104 (1989)
(exhaustion doctrine ‘‘relieves courts of the
burden of prematurely deciding questions that, entrusted to
an agency, may receive a satisfactory administrative
disposition and avoid the need for judicial
review''). Our courts have long recognized that the
doctrine applies to administrative proceedings of municipal
land use agencies such as the board. See, e.g., Piquet v.
Chester, supra, 306 Conn. 190-91; Simko v.
Ervin, supra, 503; Florentine v. Darien, 142
Conn. 415, 431, 115 A.2d 328 (1955).
Under
Connecticut law, municipal zoning boards of appeal are
empowered ‘‘[t]o hear and decide appeals where it
is alleged that there is an error in any order, requirement
or decision made by the official charged with the enforcement
of this chapter or any bylaw, ordinance or regulation adopted
under the provisions of this chapter . . . .''
General Statutes § 8-6 (a) (1); see also General
Statutes § 8-7 (‘‘[t]he concurring vote of
four members of the zoning board of appeals shall be
necessary to reverse any order, requirement or decision of
the official charged with the enforcement of the zoning
regulations''). That grant of power also is reflected
in the local regulations at issue in the present case,
[20]
which authorize the board ‘‘[t]o hear and decide
appeals where it is alleged that there is an error in an
order or decision of the Zoning Enforcement Official in the
enforcement of these Regulations.'' Wethersfield
Zoning Regs., art. X, § 10.4.B.2. Those reciprocal state
and municipal enactments represent a legislative
determination ‘‘that an appeal [to the zoning
board of appeals] is the proper mechanism for challenging the
decision of a zoning enforcement officer.'' Wnuk
v. Zoning Board of Appeals, 225 Conn. 691, 697 n.8, 626
A.2d 698 (1993).
Like
the present case, Piquet v. Chester, supra, 306
Conn. 176, involved a cease and desist order issued by a
municipal zoning enforcement officer. After reviewing the
doctrine of exhaustion of administrative remedies, our
Supreme Court held that ‘‘when a landowner
receives notice from a zoning [enforcement] officer that the
landowner's existing use of his or her property is in
violation of applicable zoning ordinances or regulations,
that interpretation constitutes a decision from which the
landowner can appeal to the local zoning board of appeals . .
. .'' Id., 185; see also Greenwich v.
Kristoff, supra, 180 Conn. 578 (‘‘[c]learly
the defendant had a statutory right to appeal the cease and
desist order to the zoning board of appeals'');
Holt v. Zoning Board of Appeals, 114 Conn.App. 13,
22, 968 A.2d 946 (2009) (‘‘[a]ppeals [to the
zoning board of appeals] are often taken from actions of
zoning enforcement officers that involve . . . the issuance
of cease and desist orders''). The court thus
concluded that the plaintiff's failure to exhaust that
administrative remedy prior to instituting a declaratory
action ‘‘left the trial court without
jurisdiction . . . .''[21] Piquet v. Chester,
supra, 191.
In the
present case, LaFountain issued a cease and desist order that
apprised the defendant that, in his view, the existing use of
the property violated the regulations. Inherent in that order
was a determination that the defendant did not have a valid
nonconforming use. See Greenwich v. Kristoff, supra,
180 Conn. 578. Pursuant to both §§ 8-6 (a) (1) and
8-7 of the General Statutes and § 10.4.B.2 of the
regulations, the defendant was entitled to appeal those
determinations to the board, which the defendant, in fact,
did. See footnote 3 of this opinion. Had the defendant not
withdrawn that appeal, the board could have determined
whether LaFountain's interpretation of the applicable
regulations was proper and whether the defendant had an
existing nonconforming use. See Piquet v. Chester,
supra, 306 Conn. 190; Greenwich v. Kristoff, supra,
578; Lane v. Cashman, 179 Conn.App. 394, 429, 180
A.3d 13 (2018); Borden v. Planning & Zoning
Commission, 58 Conn.App. 399, 411, 755 A.2d 224, cert.
denied, 254 Conn. 921, 759 A.2d 1023 (2000).
On
appeal, the defendant attempts to draw a distinction between
LaFountain's interpretation of the regulations
and his authority to do so, claiming that §
2.2.B[22]vests exclusive authority in the
commission to interpret words inthe regulations that are
undefined. Irrespective of the merits of that novel
contention, it nonetheless remains that the defendant was
free to raise that very argument in an appeal to the board.
We reiterate that, by their plain language, General Statutes
§ 8-6 (a) (1) and § 10.4.B.2 of the regulations
both empower the board to hear and decide appeals where it is
alleged that there is an error in any order of a zoning
enforcement officer. That broad grant conferred on the board
the power to decide whether LaFountain exceeded his authority
in issuing the order in the present case. The defendant thus
was required to exhaust that administrative remedy before
raising such a claim before the Superior Court, which it
indisputably did not do.
B
The
defendant further claims that two exceptions to the
exhaustion requirement excuse its failure to obtain a ruling
from the board on the propriety of the order. We address each
in turn.
1
The
defendant first invokes the futility exception to the
exhaustion requirement, claiming that an appeal to the board
in this case ‘‘would have been futile . . .
.'' As our Supreme Court has explained, the futility
exception applies ‘‘only when [the
administrative remedy] could not result in a favorable
decision . . . .'' (Emphasis added.) O & G
Industries, Inc. v. Planning & Zoning
Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995);
see also Concerned Citizens of Sterling v. Sterling,
204 Conn. 551, 560, 529 A.2d 666 (1987)
(‘‘[F]utility is more than a mere allegation that
the administrative agency might not grant the relief
requested. In most instances, we have held that the failure
to exhaust an administrative remedy is permissible only when
the administrative remedy would be useless.''). Our
Supreme Court further has instructed that ‘‘an
administrative remedy is adequate when it could provide the
[party] with the relief that it seeks and provide a mechanism
for judicial review of the administrative decision.''
O & G Industries, Inc. v. Planning &
Zoning Commission, supra, 426.
The
defendant's bald allegation that an appeal to the board
would have been futile finds no support in the record before
us and, thus, is ‘‘purely speculative.''
Id., 429. In the present case, the board had the
authority, under both state law and municipal regulation, to
determine whether there was any error in the order issued by
LaFountain. Moreover, to the extent that the board did not
rule in the defendant's favor, an avenue of judicial
review was available pursuant to General Statutes § 8-8
(b).[23] The defendant's claim of futility,
therefore, fails.
2
The
defendant also claims that its constitutional claims are
excepted from the exhaustion requirement. Our Supreme Court
has recognized a ‘‘narrow exception'' for
claims of constitutional dimension; LaCroix v. Board of
Education, 199 Conn. 70, 79, 505 A.2d 1233 (1986); that
‘‘applies when the challenge is to the
constitutionality of the statute or regulation under which
the board or agency operates, rather than to the actions of
the board or agency.'' O & G Industries,
Inc. v. Planning & Zoning Commission,
supra, 232 Conn. 426 n.5; see also Conto v. Zoning
Commission, 186 Conn. 106, 115, 439 A.2d 441 (1982)
(constitutional exception applies when party alleges
‘‘[a] constitutional defect in the [zoning]
regulations whose enforcement is at issue'');
Helbig v. Zoning Commission, 185 Conn. 294, 300, 440
A.2d 940 (1981) (‘‘[o]ur estoppel doctrine does
not preclude a party from attacking the constitutionality of
a statute or [zoning] ordinance in an independent
proceeding''). That exception to the exhaustion
requirement also applies when a defendant raises
‘‘the constitutional validity of a municipal
[zoning] ordinance [as a defense to] an action to enforce its
provisions against [the defendant].'' Norwich v.
Norwalk Wilbert Vault Co., 208 Conn. 1, 5, 544 A.2d 152
(1988).
In
answering the complaint in the present case, the defendant
raised multiple defenses predicated on protections embodied
in our state and federal constitutions. See footnote 7 of
this opinion. With one exception, those defenses all pertain
to the actions of LaFountain in issuing the order, which are
beyond the narrow purview of the constitutional exception.
See O & G Industries, Inc. v. Planning &
Zoning Commission, supra, 232 Conn. 426 n.5. The court,
therefore, properly determined that the exhaustion
requirement applied to those defenses.
The
exception is the defendant's fifth special defense, in
which the defendant argues that § 5.2.H.5 of the
regulations is void for vagueness. Unlike its other defenses,
the defendant's fifth special defense contests the
constitutionality of the zoning regulation itself, which
LaFountain enforced as the agent of the commission. See
Wethersfield Zoning Regs., art. X, § 10.3.A. In that
defense, the defendant challenges the language employed in
the zoning regulation, rather than the actions of the
official tasked with its enforcement. See Addessi v.
Connecticut Light & Power Co., 10 Conn.App. 86, 88,
521 A.2d 605 (1987) (noting that ‘‘the language
of the statute . . . is central to the constitutional void
for vagueness analysis''). For that reason, it
properly may be raised as a special defense in this
injunctive action. See Norwich v. Norwalk Wilbert Vault
Co., supra, 208 Conn. 7 (‘‘where the
plaintiff city has haled the defendant into court, the
defendant may defend on the ground of the general invalidity
of the ordinance, without exhausting all available
administrative remedies''). Moreover, this court has
recognized that a void for vagueness challenge to a municipal
zoning regulation qualifies under the constitutional
exception to the exhaustion requirement. Ogden v. Zoning
Board of Appeals, 157 Conn.App. 656, 666, 117 A.3d 986,
cert. denied, 319 Conn. 927, 125 A.3d 202 (2015). The trial
court improperly concluded otherwise. We therefore must
consider the merits of the defendant's claim that §
5.2.H.5 of the regulations is void for vagueness, which claim
the parties have briefed in this appeal.
III
The
void for vagueness doctrine ‘‘is a procedural due
process concept that originally was derived from the
guarantees of due process contained in the fifth and
fourteenth amendments to the United States constitution. . .
. [Our Supreme Court has] equated vagueness analysis under
our state constitution with the corresponding federal
constitutional analysis.'' (Citation omitted;
internal quotation marks omitted.) State v. McMahon,
257 Conn. 544, 551 n.9, 778 A.2d 847 (2001), cert. denied,
534 U.S. 1130, 122 S.Ct. 1069, 151 L.Ed.2d 972 (2002).
‘‘The vagueness rubric . . . is largely based on
the requirements of fair notice and nondiscretionary
standards. . . . Due process requires that a statute afford a
person of ordinary intelligence a reasonable opportunity to
know what is permitted or prohibited.'' (Citation
omitted; internal quotation marks omitted.) Addessi v.
Connecticut Light & Power Co., supra, 10 Conn.App.
87-88. Furthermore, ‘‘[a]n imprecise statute . .
. may be sufficiently definite if it provides reasonably
distinct boundaries for its fair administration.''
State Management Assn. of Connecticut, Inc. v.
O'Neill, 204 Conn. 746, 758, 529 A.2d 1276 (1987).
Civil
enactments like the zoning regulation at issue in the present
case ‘‘must be definite in their meaning and
application, but may survive a vagueness challenge by a
lesser degree of specificity than in criminal
statutes.'' (Internal quotation marks omitted.)
Id., 757. ‘‘In order to pass
constitutional muster, a zoning ordinance need not contain
detailed and rigid standards that anticipate every
conceivable factual situation. Indeed, [our Supreme Court
has] recognized that detailed standards within a zoning
ordinance that may be impractical or impossible to apply are
not necessary, and that some flexibility is permitted when
one standard cannot be adopted to all situations.''
Campion v. Board of Aldermen, 278 Conn. 500, 526,
899 A.2d 542 (2006). Furthermore, when the regulation at
issue pertains to a specially permitted use, [24] additional
leeway ‘‘must be afforded'' in construing
its wording. Barberino Realty & Development
Corp. v. Planning & Zoning Commission, 222
Conn. 607, 620, 610 A.2d 1205 (1992).
A
municipal zoning regulation, like a statute, ‘‘is
not void for vagueness unless it clearly and unequivocally is
unconstitutional, making every presumption in favor of its
validity.'' (Internal quotation marks omitted.)
Graff v. Zoning Board of Appeals, 277 Conn. 645,
672, 894 A.2d 285 (2006). ‘‘The party challenging
a [regulation's] constitutionality has a heavy burden of
proof; the unconstitutionality must be proven beyond all
reasonable doubt.'' Bottone v. Westport, 209
Conn. 652, 657, 553 A.2d 576 (1989). That heavy burden
requires proof ‘‘that the regulation complained
of is impermissibly vague as applied to the facts of the
particular case.'' (Emphasis added.)
Barberino Realty & Development Corp. v.
Planning & Zoning Commission, supra, 222 Conn. 620;
see also Bombero v. Planning & Zoning
Commission, 218 Conn. 737, 743, 591 A.2d 390 (1991)
(because regulations ‘‘do not exist in a vacuum,
'' courts should evaluate ‘‘their
purported vagueness . . . in the context of a specific
factual situation, so that a court may resolve any
ambiguities and, if necessary, interpret them in the light of
those facts so as to avoid any potentially unconstitutional
vagueness''); Rocque v. Farricielli, 269
Conn. 187, 205, 848 A.2d 1206 (2004) (‘‘[t]o do
otherwise . . . would be to put courts in the undesirable
position of considering every conceivable situation which
might possibly arise in the application of [the
regulation]'' [internal quotation marks omitted]).
Accordingly, ‘‘outside the context of the first
amendment, in order to challenge successfully the facial
validity of a [regulation], a party is required to
demonstrate . . . that the [regulation] may not be applied
constitutionally to the facts of [the] case.''
(Internal quotation marks omitted.) Id. The
determination of whether a zoning regulation is impermissibly
vague is a question of law and thus subject to our plenary
review. Ogden v. Zoning Board of Appeals, supra, 157
Conn.App. 669.
A
Because
Regulations Are Permissive, Parking And Storage of Commercial
Vehicles On Defendant's Property Must Be Specifically
Permitted
We
begin our analysis by noting the overarching principle that
any use of real property in the town is
‘‘prohibited if not clearly permitted''
under the regulations.[25]Like the majority of municipalities in
Connecticut, the town's regulations here are
‘‘permissive in nature, meaning that those
matters not specifically permitted are prohibited.''
Graff v. Zoning Board of Appeals, supra, 277 Conn.
653. The defendant, like all property owners in the town,
therefore was charged with notice that any activity
conducted on the property must be specifically permitted
under the regulations. See M & L Homes, Inc.
v. Zoning & Planning Commission, 187 Conn. 232,
244-45, 445 A.2d 591 (1982) (buyers of property charged with
knowledge of zoning regulations); Kalimian v. Zoning
Board of Appeals, 65 Conn.App. 628, 632, 783 A.2d 506
(property owner ‘‘charged with notice''
of ‘‘zoning regulations in effect'' when
purchasing property), cert. denied, 258 Conn. 936, 785 A.2d
231 (2001).[26]
The
activity at issue in this case is the parking and storage of
commercial vehicles on real property located in the BP zone.
Only three sections of the regulations specifically address
that activity.[27] The first two deal with accessory use.
Section 3.5.5, which is part of the section of the
regulations addressing accessory uses in residential zones,
specially permits the parking of one commercial vehicle in a
residential district, subject to certain requirements.
Section 3.5.5.B details specific criteria regarding
commercial vehicles that are to be considered in addition to
the special permit requirements contained in article VIII of
the regulations.[28] Section 3.5.5.C then indicates that
those criteria also apply to the parking of
commercial vehicles in business zones, stating:
‘‘The parking of commercial vehicles is permitted
in business zones as an accessory use to the permitted use of
the property after the issuance of Site Development Plan
approval from the [commission] permitting such vehicles. The
[c]ommission shall be governed by the submission requirements
and review criteria of [§] 3.5.5.B of these
regulations.'' Section 5.3.2, in turn, permits the
‘‘Parking of Commercial Vehicles, subject to the
provisions of [§] 3.5.5.B'' as an accessory use
of properties in the BP zone following site plan approval by
the commission. Accordingly, the parking and storage of
commercial vehicles may be permitted as an accessory use
pursuant to §§ 3.5.5.C and 5.3.2 of the
regulations, as the court recognized in its memorandum of
decision.[29] At the same time, nothing in either
§§ 3.5.5 or 5.3.2 permits the parking and storage
of commercial vehicles as a principal use.
Principal
uses of real property permitted in the BP zone are set forth
in § 5.2 of the regulations. The only conceivable
subsection that could authorize the parking and storage of
commercial vehicles as a principal use of the defendant's
property is § 5.2.H.5, which provides that
‘‘[t]rucking or freight operations with complete
visual screening of equipment and materials'' may be
conducted as a ‘‘Conditional Use Permitted Only
After Special Permit Approval By the Commission'' in
the BP zone.[30] In the order at issue in this appeal,
LaFountain cited that section and noted that it requires a
special permit from the commission.
B
Language
of ...