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Town of Wethersfield v. PR Arrow, LLC

Court of Appeals of Connecticut

February 5, 2019

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 ...


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