Ogden v. Zoning Board of Appeals ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
ARTHUR OGDEN v. ZONING BOARD OF APPEALS
OF THE TOWN OF COLUMBIA
(AC 36516)
DiPentima, C. J., and Keller and Flynn, Js.
Argued February 17—officially released June 9, 2015
(Appeal from Superior Court, judicial district of
Tolland, Hon. Lawrence C. Klaczak, judge trial referee.)
Kenneth R. Slater, Jr., for the appellant (defendant).
George C. Schober, for the appellee (plaintiff).
Opinion
FLYNN, J. The defendant, the Zoning Board of
Appeals of the Town of Columbia (board), appeals from
the judgment of the Superior Court sustaining the
appeal of the plaintiff, Arthur Odgen, from the decision
of the board upholding the cease and desist order of
the town’s zoning enforcement officer, John Valente.
On appeal, the board claims that the court erred in
concluding that (1) the regulations governing construc-
tion/contractor’s yards were vague and therefore unen-
forceable, and (2) the board’s decision upholding the
cease and desist order was not supported by substantial
evidence. We agree and reverse the judgment of the
court.
The record reveals the following facts and procedural
history. On May 1, 2009, Valente issued a cease and
desist order to the plaintiff, informing him that he was
impermissibly using the commercial portion of his real
property located at 6 Cherry Valley Road in Columbia
as a construction/contractor’s yard. Part of the property
falls within an area zoned for commercial use, while
the remainder falls within an area zoned for residential
use. The cease and desist order further informed the
plaintiff that he could remedy the impermissible use of
the commercial portion of his property by submitting
an application under Section 31 of Columbia’s zoning
regulations. Sections 31.1 through 31.3 of the zoning
regulations provide that a permit for a construction/
contractor’s yard may be issued for a commercially
zoned property if an application for a special exception
and a site plan are submitted by the property owner
and approved by the Zoning Commission of the Town
of Columbia (commission).
On June 5, 2009, the plaintiff filed an application for
a special exception and site plan approval so that he
could operate a construction/contractor’s yard on the
commercially zoned portion of his property. The plain-
tiff planned to use the construction/contractor’s yard
for ‘‘the outside storage of vehicles, equipment and trail-
ers and a wholesale operation for the distribution of
landscaping materials . . . .’’ The plaintiff also sought
approval for ‘‘a sign to be located on the northeasterly
corner of the [p]roperty, landscaping and buffering all
as depicted on the [site plan].’’ The site plan required
the plaintiff to ‘‘perform excavation, grading, stockpil-
ing and earth removal as necessary to make the [p]rop-
erty more suitable for the proposed uses.’’ The
commission approved the plaintiff’s application and site
plan on September 28, 2009, and the special exception
permit for the construction/contractor’s yard was
recorded in the town land records.
On May 10, 2010, Valente issued a second cease and
desist order to the plaintiff because the plaintiff was
continuing to use his property as a construction/con-
tractor’s yard without satisfying the conditions of the
site plan. The order informed the plaintiff that he was
continuing to impermissibly use his property as a con-
struction/contractor’s yard and that, if he wished to
‘‘legally establish this use,’’ he must ‘‘comply with the
conditions of approval’’ as set forth in the site plan.
The plaintiff appealed the order to the board and public
hearings were held on the matter on June 24 and July
22, 2010. On August 26, 2010, in a four to one vote, the
board upheld the order and subsequently issued a letter
to the plaintiff informing him that the order had been
upheld because ‘‘the records showed that [the plaintiff]
was operating a contractor’s yard . . . prior to receiv-
ing a Certificate of Zoning Compliance.’’
In September, 2010, the plaintiff appealed the board’s
decision to uphold the cease and desist order to the
Superior Court for the judicial district of Tolland. The
plaintiff filed an amended appeal on November 14, 2011,
alleging that the board’s decision was ‘‘illegal, arbitrary,
and an abuse of discretion’’ and that the board’s actions
amounted to an unconstitutional taking of his property.
The court, Hon. Lawrence C. Klaczak, judge trial ref-
eree, heard the appeal on March 28, 2013. On July 16,
2013, the court issued a memorandum of decision in
which it sustained the plaintiff’s appeal on the grounds
that the construction/contractor’s yard regulations
were ambiguous and that the record did not contain
substantial evidence that the plaintiff was unlawfully
operating a construction/contractor’s yard on his prop-
erty. This certified appeal followed. Additional facts
will be set forth as necessary.
I
The board first claims that the court erred in conclud-
ing that the regulations governing construction/contrac-
tor’s yards were vague and therefore unenforceable.
Before discussing the substance of this claim, we find
it necessary to address whether the board has correctly
characterized the nature of the plaintiff’s argument
before the court and the court’s holding. The plaintiff
first raised the issue of vagueness in his trial brief.
He began his argument by stating that ‘‘[t]he zoning
regulations in this matter do not contain a definition
of [construction/contractor’s yard] and are therefore
ambiguous.’’ He also alleged that, during the public
hearings, ‘‘[n]o legal definition or otherwise was submit-
ted [for a construction/contractor’s yard] and [Valente]
and [the board] submitted their own subjective defini-
tions. Once again, for these reasons, [the board’s] deci-
sion to uphold the cease and desist [order] was
unreasonable, arbitrary, illegal and an abuse of dis-
cretion.’’
The plaintiff then went on to argue that, if the zoning
regulations were vague, they must be construed in his
favor. He contended that ‘‘the definition of [construc-
tion/contractor’s yard] is vague and ambiguous because
no definition exists within the zoning regulations. To
hold nonexisting terms against the [plaintiff] would
result in violation of [his] due process rights under both
the United States and Connecticut Constitutions and
would constitute a taking of [his] property rights with-
out compensation, thereby depriving [him] of not only
[his] property rights but also of the value, reasonable
use and enjoyment of [his] property without due pro-
cess of law. . . . Accordingly, any ambiguity should be
construed against the [board]. Nevertheless, since no
ambiguity exists because of the nonexisting definition
of [construction/contractor’s yard], the [plaintiff’s]
appeal must succeed.’’ (Citation omitted.)
The court, in ruling on the plaintiff’s appeal, noted
that ‘‘[a]lthough the plaintiff argues that the lack of
definitions for the terms ‘contractor’s yard’ and ‘con-
struction yard’ renders the regulation vague, he does
not argue that the regulations are void for vagueness.
Rather, he argues that ‘if the zoning regulations are
vague, they must be construed in [his] favor.’ ’’ The
court found that the zoning regulations did not define
‘‘construction/contractor’s yard’’ and that, accordingly,
it must interpret the regulations ‘‘to ascertain the mean-
ing of these terms.’’ The court consulted Webster’s
Third New International Dictionary and discovered
that, while the dictionary ‘‘does not define the phrases
‘contractor’s yard’ or ‘construction yard,’ it does define
the individual terms, in relevant part, as follows. ‘Yard’
means ‘a small usu[ally] walled and often paved vacant
area open to the sky and adjacent to a building . . .
an area set aside for a particular business or activity
. . . an assembly or storage area.’ . . . ‘Contractor’
means: ‘one that performs work . . . or provides sup-
plies on a large scale . . . according to a contractual
agreement at a price predetermined by his own calcula-
tions . . . one who contracts on predetermined terms
to provide labor and materials and to be responsible
for the performance of a construction job in accordance
with established specifications or plans—called also
building contractor.’ . . . ‘Construction’ means: ‘the
act of putting parts together to form a complete and
integrated object . . . fabrication.’ ’’ (Citations omit-
ted; emphasis in original.)
With these definitions in mind, the court noted that,
‘‘[i]n their broadest sense, the terms ‘contractor’s yard’
and ‘construction yard’ could describe most any place
under the open sun where there occurs, either fre-
quently or infrequently, ‘contractor’ or ‘construction’
activity, which could describe (1) most any kind of
economic activity or (2) most any noneconomic activity
related to putting things together. Nevertheless, it is
clear that this is not what is meant by the regulation.
Section 31 lists sixty-five other permissible uses in the
commercial and manufacturing zones that are subject
to site plan or special exception requirements, and
many of them would be encompassed by such a defini-
tion. Thus, if the court were to construe the regulation
in this broad manner, it would render these other provi-
sions meaningless, superfluous, void or insignificant.
Such a construction is impermissible if it can be at
all avoided. . . . Therefore, the regulation must mean
something more specific and, indeed, the members of
the [board] seemed to agree that ‘contractor’s yard’ is
a term of art that means something specific, but they
did not articulate any consensus on what that meaning
is. At the [board’s] hearings and regular meeting, its
members debated what the phrase ‘contractor’s yard’
actually means. In all of their discussions, the members
of the [board] did not ever elucidate—or even agree
upon—a definition of ‘contractor’s yard.’ Rather, a
majority of members simply agreed that, whatever it
is that is meant by this term was happening on the
[plaintiff’s] parcel.’’ (Citations omitted.)
The court concluded that, ‘‘[w]ithout additional guid-
ance, [the regulations are] not ‘reasonably precise in
subject matter and reasonably adequate and sufficient’
to give the [board] and the plaintiff ‘notice of their rights
and responsibilities’ as [they] must. . . . As noted
above and as evidenced by the dissent among members
of the [board], the terms ‘contractor’s yard’ and ‘con-
struction yard’ in [the regulations] are ambiguous as
applied to the plaintiff’s actions. . . . The court is
mindful that it must construe [the regulations’] ‘doubtful
language . . . against rather than in favor of a [restric-
tion].’ . . . As the regulation is ambiguous as applied
to the plaintiff’s actions and as the record does not
contain substantial evidence demonstrating that the
plaintiff was unlawfully operating a construction or con-
tractor’s yard, the plaintiff’s appeal is sustained on
this ground.’’
On appeal to this court, the board claims that the
Superior Court improperly held that the construction/
contractor’s yard regulations were vague and therefore
unenforceable. Essentially, the board characterizes the
court’s decision as a holding that the regulations were
unconstitutionally vague as applied to the plaintiff. We
note that it is unclear from the plaintiff’s trial brief
exactly what claim he was attempting to raise before
the court. The crux of the plaintiff’s argument seems
to have been that the regulations were ambiguous and
must therefore be construed in his favor. He also argued
that it would be unconstitutional to ‘‘hold nonexisting
terms’’ against him and that ‘‘no ambiguity exists
because of the nonexisting definition of [construction/
contractor’s yard]’’ and therefore his appeal ‘‘must suc-
ceed.’’ In viewing the plaintiff’s trial brief as a whole,
it seems evident that the plaintiff was not attempting
to argue that the board incorrectly interpreted the con-
struction/contractor’s yard regulations and determined
that they applied to him. Rather, the plaintiff appears
to have argued that the board could not interpret the
regulations in any way that would be correct because
the regulations did not contain a definition for ‘‘con-
struction/contractor’s yard.’’ In other words, the plain-
tiff’s argument before the court was that the absence of
a definition for construction/contractor’s yard rendered
the regulations vague and therefore they could not be
enforced, or ‘‘held,’’ against him.
We also note that the plaintiff does not challenge the
board’s characterization of the court’s holding in his
appellate brief. Rather, the plaintiff argues that the court
did not err when it ruled that the regulations governing
construction/contractor’s yards were invalid and unen-
forceable. The plaintiff briefs the issue as a vagueness
claim and cites to case law on the void for vagueness
doctrine. In light of the plaintiff’s arguments in his trial
brief and appellate brief, and the court’s holding that
the regulations were ambiguous ‘‘as applied’’ to the
plaintiff and therefore could not be enforced against
him, we conclude that the plaintiff raised, and the court
ruled on, a claim that the regulations were unconstitu-
tionally vague as applied to him.
Having concluded that the board correctly charac-
terized the court’s decision as a holding that the con-
struction/contractor’s yard regulations were unconsti-
tutionally vague as applied to the plaintiff, we now
address the substance of the board’s claim. The board
argues that the court improperly considered whether
the regulations were vague because the plaintiff did
not raise the issue before the board during the public
hearings or in the complaint for his administrative
appeal. The board also argues that, if the court properly
considered the issue, it improperly concluded that the
regulations were vague. The plaintiff argues that the
court properly considered his vagueness claim because
he raised it in his trial brief and the claim is of constitu-
tional magnitude. He also argues that the court properly
concluded that the regulations were vague. We agree
with the board that the court improperly concluded
that the construction/contractor’s yard regulations
were unconstitutionally vague as applied to the plaintiff.
A
We must first determine whether the plaintiff’s claim
that the construction/contractor’s yard regulations
were unconstitutionally vague as applied to him was
properly before the court. Our Supreme Court has pre-
viously held that ‘‘[a] party to an administrative proceed-
ing cannot be allowed to participate fully at hearings
and then, on appeal, raise claims that were not asserted
before the board. We have made it clear that we will
not permit parties to anticipate a favorable decision,
reserving a right to impeach it or set it aside if it happens
to be against them, for a cause which was well known
to them before or during the trial.’’ (Internal quotation
marks omitted.) Dragan v. Connecticut Medical Exam-
ining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992);
see also Finkenstein v. Administrator, Unemployment
Compensation Act, 192 Conn. 104, 112–14, 470 A.2d
1196 (1984) (declining to review claim that was not
properly raised before board of review). Furthermore,
‘‘[t]o allow a court to set aside an agency’s determina-
tion upon a ground not theretofore presented . . .
deprives the [agency] of an opportunity to consider the
matter, make its ruling, and state the reasons for its
action.’’ (Internal quotation marks omitted.) Burnham
v. Administrator, Unemployment Compensation Act,
184 Conn. 317, 323, 439 A.2d 1008 (1981).
The plaintiff argues, however, that, even though he
did not raise his vagueness claim before the board, it
was properly before the court because it was of consti-
tutional magnitude. We agree. The ‘‘well-recognized lim-
itations on judicial review do not require courts to
abstain entirely from entertaining questions that might
have been, but were not, raised before the administra-
tive tribunal. Reviewing courts retain considerable lati-
tude, in ordinary legal proceedings, to consider matters
not raised in the trial court. . . . The standard for
review of administrative proceedings similarly must
allow for judicial scrutiny of claims such as constitu-
tional error . . . jurisdictional error . . . or error in
the construction of the administrative agency’s author-
izing statute.’’ (Citations omitted.) Id., 322.
It would be pointless for us to require the plaintiff
to bring his constitutional claim before the board, as it
is a ‘‘well established common-law principle that admin-
istrative agencies lack the authority to determine consti-
tutional questions.’’ Cumberland Farms, Inc. v. Groton,
262 Conn. 45, 64, 808 A.2d 1107 (2002); see also Stepney,
LLC v. Fairfield, 263 Conn. 558, 570, 821 A.2d 725 (2003)
(noting that party’s failure to exhaust administrative
remedies will be excused if claim alleges constitutional
violation and administrative agency lacks authority to
grant adequate relief). Nor is the plaintiff required to
challenge the validity of the construction/contractor’s
yard regulation in a separate declaratory judgment
action. See Bombero v. Planning & Zoning Commis-
sion, 218 Conn. 737, 745 n.10, 591 A.2d 390 (1991) (‘‘a
landowner faced with a cease and desist order based
on an invalid regulation should be permitted to raise
its invalidity in the course of his appeal from the cease
and desist order’’). We conclude that the plaintiff’s claim
that the construction/contractor’s yard regulations
were unconstitutionally vague as applied to him was
properly before the court.
The board also argues that the plaintiff’s vagueness
claim was not properly before the court because the
plaintiff did not include the claim in his appeal. In its
memorandum of decision, the court acknowledged that
the appeal did not contain a vagueness claim. The court
reasoned that it could nevertheless address the claim
because the plaintiff had raised it in his trial brief and
it had a ‘‘genesis in the appeal.’’ We do not condone
the practice of raising claims for the first time in a
trial brief. It is well established in our case law that
‘‘a pleading must provide adequate notice of the facts
claimed and the issues to be tried. . . . Whether a
[pleading] gives sufficient notice is determined in each
case with reference to the character of the wrong com-
plained of and the underlying purpose of the rule which
is to prevent surprise upon the defendant.’’ (Internal
quotation marks omitted.) Tedesco v. Stamford, 215
Conn. 450, 459, 576 A.2d 1273 (1990). However, ‘‘[o]ur
rules of practice are designed to have all formal and
technical objections made known as early as practica-
ble, so that the plaintiff may amend or proceed anew,
and the parties may, as expeditiously and inexpensively
as possible, reach and settle their controversy upon its
merits. . . . The appeal process should not be utilized
to seek to correct pleading deficiencies the party com-
plaining clearly could have remedied under our rules
in the trial court.’’ (Citation omitted; internal quotation
marks omitted.) Id., 457–58.
The plaintiff’s trial brief put the board on notice that
the plaintiff intended to raise claims at trial that were
not included in the appeal.1 The board had the opportu-
nity to respond to the plaintiff’s additional claims in its
own trial brief but did not do so. There is no indication
in the record before us that the board objected to the
plaintiff’s actions in raising a claim in his trial brief
that was not reflected in the appeal. If the board had
objected, then the plaintiff could have attempted to
amend his appeal and properly place his vagueness
claim before the court pursuant to Practice Book § 10-
60 (a).2 We decline to reverse the judgment of the Supe-
rior Court on grounds that were known to the board
at the time of trial and that it could have addressed,
but chose not to, at that time.
B
We now turn to the question of whether the court
properly concluded that the construction/contractor’s
yard regulations were vague and therefore unenforce-
able. The crux of the plaintiff’s argument is that the
regulations are unconstitutionally vague as applied to
him because they do not define a construction/contrac-
tor’s yard and, as a result, he lacked adequate notice
that the regulations applied to his use of his property.
He also argues that the vagueness of the regulations
allowed Valente and the commission to arbitrarily
enforce them against him.3
‘‘As a threshold matter, it is necessary to discuss the
applicable standard of review. 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 statute’s con-
stitutionality has a heavy burden of proof; the unconsti-
tutionality must be proven beyond all reasonable doubt.
. . . Additionally, in a vagueness challenge, such as
this, civil statutes can be less specific than criminal
statutes and still pass constitutional muster. . . . To
prove that a statute is unconstitutionally vague, the
challenging party must establish that an ordinary person
is not able to know what conduct is permitted and
prohibited under the statute.’’ (Citations omitted.) Bot-
tone v. Westport, 209 Conn. 652, 657–58, 553 A.2d 576(1989).
‘‘To demonstrate that [a statute] is unconstitutionally
vague as applied to [him], the [plaintiff] therefore must
. . . demonstrate beyond a reasonable doubt that [he]
had inadequate notice of what was prohibited or that
[he was] the victim of arbitrary and discriminatory
enforcement. . . . [T]he void for vagueness doctrine
embodies two central precepts: the right to fair warning
of the effect of a governing statute . . . and the guaran-
tee against standardless law enforcement. . . . If the
meaning of a statute can be fairly ascertained a statute
will not be void for vagueness since [m]any statutes
will have some inherent vagueness, for [i]n most English
words and phrases there lurk uncertainties.’’ (Internal
quotation marks omitted.) Graff v. Zoning Board of
Appeals, supra, 277 Conn. 672–73.
‘‘[T]he burden of showing that regulations are uncon-
stitutionally vague rests with the plaintiff. . . . More-
over, the plaintiff is required to show that the regulation
complained of is impermissibly vague as applied to the
facts of the particular case.’’ (Citations omitted.) Bar-
berino Realty & Development Corp. v. Planning & Zon-
ing Commission, 222 Conn. 607, 620, 610 A.2d 1205(1992). ‘‘The determination of whether a statutory provi-
sion is unconstitutionally vague is a question of law
over which we exercise de novo review.’’ State v. Winot,
294 Conn. 753, 758–59, 988 A.2d 188 (2010).
The plaintiff argues that he lacked adequate notice
that his use of his property was prohibited because
the construction/contractor’s yard regulations do not
include a definition for ‘‘construction/contractor’s
yard.’’ We are not persuaded that a zoning regulation
is necessarily vague because it contains a term that is
not defined. See Zarembski v. Warren, 28 Conn. App.
1, 5, 609 A.2d 1039 (rejecting plaintiffs’ argument that
zoning regulation permitting use of accessory building
as residence for up to three full-time employees was
vague and unenforceable because it did not define ‘‘full-
time employee’’), cert. denied, 223 Conn. 918, 614 A.2d
831 (1992). Moreover, we are not persuaded that the
plaintiff lacked adequate notice that his use of his prop-
erty was governed by the construction/contractor’s
yard regulations.
A review of the record reveals that the plaintiff was
fully aware that the construction/contractor’s yard regu-
lations applied to his use of his property. Valente issued
two cease and desist orders to the plaintiff, the second
of which is the subject of this appeal. The first order,
dated May 1, 2009, informed the plaintiff that he was
in violation of the zoning regulations because he was
impermissibly using his property as a construction/con-
tractor’s yard. The order described the plaintiff’s pro-
hibited activities as ‘‘[o]utside storage of seven (7)
bulldozers, backhoes, trailers, excavators, and other
construction equipment’’ and ‘‘[s]tockpiling and grading
of soil.’’ The order also indicated that, if the plaintiff
wished to ‘‘legally establish this use,’’ he could do so
by submitting an application for a special exception
and site plan approval under § 31 of the zoning regula-
tions. The plaintiff then submitted an application for a
special exception and site plan approval so that he
could use his property as a construction/contractor’s
yard. In his site plan, the plaintiff stated that he planned
to use his construction/contractor’s yard for ‘‘the out-
side storage of vehicles, equipment and trailers and a
wholesale operation for the distribution of landscaping
materials.’’ The plaintiff’s application for a special
exception was granted. The second cease and desist
order was issued after the plaintiff continued to operate
a construction/contractor’s yard on his property with-
out satisfying the conditions of the site plan.
The record indicates that the plaintiff received an
initial cease and desist order that notified him that he
was in violation of the construction/contractor’s yard
regulations and explained exactly what activities on the
property constituted the violation. Having been notified
that the construction/contractor’s yard regulations
applied to him, the plaintiff then submitted an applica-
tion in which he sought approval for a permit to operate
a construction/contractor’s yard and stated how he was
going to use his property in that manner. This evidence
belies any claim that, prior to the issuance of the second
cease and desist order, the plaintiff was unaware that
the construction/contractor’s regulations applied to his
use of his property. See R & R Pool & Patio, Inc. v.
Zoning Board of Appeals, 257 Conn. 456, 481, 778 A.2d
61 (2001) (cease and desist order, which did not specify
which furniture sold by plaintiffs was mass produced
and thereby violated ordinance, did not deprive plain-
tiffs of due process because ‘‘[t]he plaintiffs’ evidence
submitted to the board in the site plan case indicated
that they knew exactly which furniture was mass
produced’’).
The plaintiff also claims that the lack of a definition
of ‘‘construction/contractor’s yard’’ allowed Valente and
the commission to arbitrarily enforce the construction/
contractor’s yard regulations against him. We are not
persuaded. The plaintiff alleges that the commission
directed Valente to issue the cease and desist orders
as a form of retribution arising out of an argument the
plaintiff had with some members of the commission in
2005. The plaintiff refers to his testimony at the public
hearings underlying the present appeal, in which he
informed the board that he had ‘‘a problem with the
[commission] during an explosion back in 2005’’ when
he was ‘‘being interrupted while I was talking and I told
somebody to shut up and ever since then I’ve been on
the chopping block, it seems like.’’ The plaintiff has
presented no other evidence that supports his claim
that he has been the victim of arbitrary and discrimina-
tory enforcement.
We conclude that the plaintiff has failed to show
that the construction/contractor’s yard regulations are
impermissibly vague as applied to the facts of this case.
The plaintiff has failed to meet his burden of demonstra-
ting beyond a reasonable doubt that he lacked adequate
notice that the construction/contractor’s yard regula-
tions applied to him or that he was the victim of arbi-
trary and discriminatory enforcement. Accordingly, we
further conclude that the court improperly sustained
the plaintiff’s appeal on the ground that the construc-
tion/contractor’s regulations were unconstitutionally
vague as applied to him.
II
We next address the board’s claim that the court
improperly concluded that the board’s decision uphold-
ing the second cease and desist order was not supported
by substantial evidence. The board argues that its deci-
sion was supported by substantial evidence and that
the court usurped the board’s fact-finding function
when the court found facts based on statements made
at trial and inferred facts regarding the contents of
documents not contained in the record. We agree that
the board’s decision was supported by substantial
evidence.
The following additional facts are necessary for our
resolution of this claim. During the public hearings on
the second cease and desist order, the board heard
evidence on whether the plaintiff was in violation of
the construction/contractor’s yard regulations. Valente
informed the board that, after the plaintiff received
approval for his site plan for the construction/contrac-
tor’s yard, he ‘‘continued to run a [construction/contrac-
tor’s yard] without a zoning compliance, a certificate
of zoning compliance.’’ Valente stated that ‘‘[i]t was
evident, that from my perspective, that it was a contrac-
tor’s yard, that the business was being run there.’’
At various points throughout the hearings, members
of the board defined a contractor’s yard. Chairman
Joseph Narkawicz stated that ‘‘[a] contractor’s yard,
from what I heard from testimony, is his equipment’s
on the yard one day. It’s gone. It comes back. It goes
to a job. It comes back. That’s a contractor’s yard.’’
He later stated that ‘‘[a] contractor’s yard is, in any
definition, in any book, dictionary, whatever, a place
where you meet, you go over details with your employ-
ees, and then you go to a job site and you move equip-
ment or tools.’’ Board member Jeffrey Vose also stated
that, if the plaintiff was storing equipment on his prop-
erty and taking it to construction jobs elsewhere, ‘‘that’s
part of a contractor’s yard.’’
Valente presented evidence that the plaintiff was
using his property in the manner described by the board
members as a contractor’s yard. Valente stated that the
plaintiff ‘‘leaves [his property] with his equipment to
do jobs off site.’’ Valente discussed some photographs
he had taken of the plaintiff’s property, including con-
struction equipment that Valente had also photo-
graphed at different construction sites. Valente made
the following statements to the board: ‘‘I had some of
the photos that I took were blown up and this is just
to show we had this white van and if you look at all of
my inspections, you’ll see that the white van is generally
there . . . . I believe the white van is operated by one
of [the plaintiff’s] workers. . . . Here’s that dump truck
that’s been there for greater than a year, the dump body
that’s been in the front for sale for greater than a year.
The white van is, once again, here and the large dump
truck and the small dump truck you can’t see, is over
here. . . . There’s a screener where [the plaintiff], the
activity I see on the property, is some screening of
loam from a couple of the existing topsoil piles. . . .
I happened to be going to the old Shaw’s parking area
where now will be the [Price Rite] . . . where [the
plaintiff] had contracted, he’s working there. This is the
white van. I think it’s pretty much the white van. At
least it was a lot clearer to me when I looked at it than
this picture shows. But this is the white van at that
particular job site and here’s a front end loader and
couple of [the plaintiff’s] workers. The other gentleman,
I believe, spends most of his time in a blue pickup truck
which I think [the plaintiff] owns. This is one of [the
plaintiff’s] vehicles, that’s his dump truck and that’s one
of his workers and himself and these pictures are taken,
these last few pictures are taken at the [Price Rite]. . . .
So basically, these pictures and others I have show, that
from my perspective, that [the plaintiff] has, is still
employing or was still employing a couple guys and
they’re working or showing up at his property and then
leaving and then occupied with him on a job site.’’
Valente also stated that the plaintiff had a sign on his
property with the words ‘‘Art Ogden Construction’’
on it.
Additionally, Narkawicz stated that he had personally
witnessed trucks ‘‘going in and out’’ of the plaintiff’s
property, ‘‘[s]ometimes in the morning and sometimes
at night.’’ Residents of the plaintiff’s neighborhood also
informed the board that they believed the plaintiff was
operating a construction business on his property. Pat
Shimchick stated that she had seen a restaurant pla-
cemat with advertisements on it that ‘‘clearly shows
[the plaintiff’s property at] 6 Cherry Valley Road as
his business address and his residential phone as the
business phone. . . . Additionally, friends report
seeing his business card with the same information
posted in local businesses. I believe that [the plaintiff]
is operating a business at 6 Cherry Valley Road. As you
may know, his driveway borders our backyard and our
side yard. . . . On many early morning occasions I
have observed commercial trucks being loaded onto a
flatbed . . . . These maneuvers require three people,
one operating the yellow shovel, one in the dump truck,
and one directing the other two. Then the equipment
leaves his yard and returns later that day or even several
days later. I have also observed the larger dump truck
being driven off site in the morning and then later return
with a load of large stones and dirt, which is unloaded
somewhere on his site. I have seen [the plaintiff] use
the blue machinery, I believe somebody called that a
screener, to sift soil, load it into a dump truck, cover
it with a tarp and drive off site, returning later. There
seem to be the same people who regularly arrive early
in the day and may stay all day or get into other vehicles
and drive off, returning later in the day to drive away
in the vehicle that they parked earlier in the day.’’
Steven Shimchick stated that ‘‘there’s not as much
stuff there [on the property] now. There was a lot more
equipment, a lot more equipment leaving, a lot of equip-
ment coming back, a lot of supplies leaving and coming
back. You know, it’s, in my opinion, there had to be a
business going on.’’ Finally, Karen Friedmann stated
that she observed construction activity on the plaintiff’s
property: ‘‘I do see activity. I see it in the morning. I
hear the chains on the truck. I hear the dump truck
going. I can see people out there, not every morning.’’
Additionally, Valente informed the board that he
attempted to work with the plaintiff so that the plaintiff
could accomplish the site plan within a reasonable time
and continue to operate the contractor’s yard, but the
plaintiff refused to cooperate. Valente stated: ‘‘Typically
when someone comes in and gets a special exception
or site plan approval they don’t currently have that
business operating. . . . Unfortunately, [the plaintiff]
was already occupying that property, running a con-
struction business. I didn’t want to see him have a
severe financial loss by having to abandon the use on
that property as a construction business so we tried to
work with him from that day forward. Looking that
there would be some compliance, some indication that
he was moving toward satisfying the conditions of that
special exception site plan approval.’’
Valente then described a series of letters he sent and
telephone calls he made to the plaintiff in order to
establish a time line for when the site plan would be
finished, because the plaintiff ‘‘could not continue to
operate a construction yard indefinitely and that work
[for the site plan] had to be separated out and done so
that he could operate that construction yard. That he
had gone doing, yes, he was doing some of that work
but, at the same time, he was operating a construction
business and he just couldn’t continue to go in that
vein.’’ The plaintiff told the board that he had ‘‘started
building the berms and cleared, cut the trees and
cleared the area, stumped it . . . .’’ The plaintiff did
not contest, either before the board or the court, the
fact that he had not complied with the conditions of
the site plan.
The plaintiff argued to the board that he was not
using his property as a construction or contractor’s
yard. The plaintiff was represented at the hearing by
Darlene Chapdelaine of Action Consulting and Associ-
ates. Chapdelaine informed the board that the plaintiff
was ‘‘clearly developing his facility for a contractor’s
yard’’ but was not running a construction business
there. She told the board that the only work the plaintiff
was doing on his property was that associated with the
completion of the site plan. Chapdelaine also stated
that the plaintiff had received approval to use his prop-
erty for ‘‘farm and nursery uses.’’ She then asserted
that the plaintiff was ‘‘in the process of developing’’ a
wholesale garden and farm material business on his
property and that he did not need to comply with the
site plan or obtain a certificate of zoning compliance
in order to do so.
Chapdelaine made additional statements that contra-
dicted her earlier assertions that the plaintiff was not
operating a contractor’s yard on his property. She stated
that the plaintiff was ‘‘trying to utilize everything that
he possibly can for his resources to help keep the costs
down to develop the property. And work at the same
time.’’ Additionally, she stated that the plaintiff ‘‘oper-
ates an excavation business. He needs the same equip-
ment to do his job site as he does to do his own project.
So it leaves the project and it comes back to the project.’’
The plaintiff also spoke to the board and informed it
that he works with ‘‘the guy with the white van. We
meet there [on the plaintiff’s property]. We drive
together. And it doesn’t make it a contractor . . . I
didn’t have any idea that that made it a contractor’s
yard.’’
After hearing all the evidence, the board met for a
final time to make its decision. Vose, speaking to the
plaintiff, stated: ‘‘There’s a cease and desist because
the permit that was granted [for the contractor’s yard]
had conditions on it. Those conditions have not been
met . . . . I firmly believe that you need a certificate
of zoning compliance before you can operate there. In
order to get that, you gotta have those conditions met.
So I think it’s abundantly clear through the evidence
provided by [Valente] and [advertisements] that were
shown to us and so forth, that you’re operating your
business out of there.’’ Three out of the other four board
members agreed with Vose.
Board member Gene Savoie disagreed that the plain-
tiff was operating a contractor’s yard, stating: ‘‘I gotta
disagree with you. . . . Because I don’t see it as
operating a business. I see it as storing or parking vehi-
cles. They have to do with the business but it’s not like
he’s running a Wal-Mart with customers coming in and
out, lights on at night. . . . His construction equip-
ment’s got to be parked somewhere when it’s not in
use. And I don’t see it, have an issue with it.’’ In reply,
Vose noted that ‘‘the only permit [the plaintiff] has right
now is for storage within the building [already on his
property] so right now he’s not allowed to have anything
outside that building. So, for him to operate a contrac-
tor’s yard, which is what he wants to do, he has to
comply with the conditions that were associated with
that.’’ The board then voted four to one to uphold the
cease and desist order. A notice of decision was issued
to the plaintiff, informing him that the cease and desist
order had been upheld because ‘‘the records showed
that [the plaintiff] was operating a contractor’s yard
. . . prior to receiving a certificate of zoning com-
pliance.’’
The plaintiff then appealed to the Superior Court and
the court sustained the appeal, finding that the board’s
decision to uphold the cease and desist order was not
supported by substantial evidence. The court found that
the plaintiff ‘‘was permitted to operate a nursery and,
in addition, he was required to use his equipment on
the parcel to make improvements in connection with
his special exception. The record does not contain sub-
stantial evidence demonstrating that the plaintiff was
doing anything more than what he was expressly
required to do under the special exception, and what
he was permitted to do in connection with his operation
of a nursery on the parcel.’’ (Footnote omitted.) The
court referenced the plaintiff’s trial testimony that ‘‘he
lived on the property and carpooled to job sites daily
with his employee, who parked his van on the property
during the workday and then drove it home in the eve-
nings. . . . He further testified that he operated a
wholesale nursery on the property pursuant to a sepa-
rate permit granting him permission to do so.’’ The
court also noted that Chapdelaine had informed the
board during the public hearings that the plaintiff had
a permit to operate a nursery on his property.
In a footnote, the court addressed the fact that ‘‘[n]ei-
ther of the plaintiff’s nursery permits are present in the
record. Nevertheless, pursuant to Practice Book § 14-
7B, it is the responsibility of the [board] to supply the
court with the record, which includes ‘any and all docu-
ments, transcripts, exhibits, plans, minutes, agendas,
correspondence, or other materials . . . which are
part of the return of record described in General Stat-
utes § 8-8 (k).’ As stated at the outset, the [board] filed
the Return of Record on December 14, 2011. Subse-
quently, it filed an index for a Supplemental Return of
Record, entitled ‘Certified List of Papers of Record’ on
January 26, 2012. The index states: ‘[T]he plaintiff has
asserted that the record should be supplemented with
additional documents. After conferring and reaching
agreement on the documents to be considered as papers
of record, the following is the certified list of the full
record of the proceeding of the [board] upon which
this appeal is predicated . . . .’ The index lists, inter
alia, the following additional documents: Item 12.s
Nursery Inspection and Registration Certificate # 264
issued [August 1, 2011]; and Item 12.t Nursery Inspec-
tion and Registration Certificate # 264 issued 2006. Nei-
ther of those documents, and in fact none of the forty-
four additional documents listed in the supplemental
index were filed with the court. The index filed by the
[board] provides adequate support for the plaintiff’s
testimony, which the [board] does not dispute, that he
had a permit to operate a nursery on the parcel.’’
We now turn to the applicable standard of review.
‘‘In reviewing a decision of a zoning board, a reviewing
court is bound by the substantial evidence rule,
according to which, [c]onclusions reached by [a zoning
board] must be upheld by the trial court if they are
reasonably supported by the record. The credibility of
the witnesses and the determination of issues of fact
are matters solely within the province of the [board].
. . . The question is not whether the trial court would
have reached the same conclusion, but whether the
record before the [board] supports the decision
reached. . . . If a trial court finds that there is substan-
tial evidence to support a zoning board’s findings, it
cannot substitute its judgment for that of the board.
. . . If there is conflicting evidence in support of the
zoning [board’s] stated rationale, the reviewing court
. . . cannot substitute its judgment as to the weight of
the evidence for that of the [board]. . . . The agency’s
decision must be sustained if an examination of the
record discloses evidence that supports any one of the
reasons given.’’ (Citations omitted; internal quotation
marks omitted.) Municipal Funding, LLC v. Zoning
Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511(2004).
The board claims that the court improperly con-
cluded that the board’s decision to uphold the cease and
desist order was not supported by substantial evidence.
The board argues that the court improperly usurped the
board’s fact-finding role when it relied on the plaintiff’s
statements at trial and on documents outside of the
record to determine that the plaintiff was operating a
nursery on his property and that he had a permit to do
so. We agree that the court improperly concluded that
the board’s decision was not supported by substan-
tial evidence.
In an administrative appeal, ‘‘[i]t is not the function
of the court to retry the case. Upon appeal the function
of the court is to examine the record of the hearing
before the board to determine whether the conclusions
reached are supported by the evidence that was before
it. The question is not whether the trial court would
have reached the same conclusions but whether the
record before the board supports the board’s action.’’
O’Donnell v. Police Commission, 174 Conn. 422, 426,
389 A.2d 739 (1978).
After reviewing the record before the board, we con-
clude that there was substantial evidence to support
the board’s finding that the plaintiff was operating a
construction/contractor’s yard without a certificate of
zoning compliance. Narkawicz, the chairman of the
board, stated that a construction/contractor’s yard is
‘‘a place where you meet, you go over details with your
employees, and then you go to a job site and you move
equipment or tools.’’ Valente presented ample testi-
mony and photographic evidence that the plaintiff was
using his property to house construction equipment
that he took to construction sites elsewhere and then
returned to the property. There was also evidence that
the plaintiff met with his employees at the property
and then traveled to construction sites with them from
there. Narkawicz stated that he had personally wit-
nessed construction vehicles coming and going from
the plaintiff’s property. Residents of the plaintiff’s
neighborhood also testified that they had seen and
heard construction equipment and construction activity
on the property, including the equipment leaving and
returning. The plaintiff had a sign on his property that
read ‘‘Art Ogden Construction,’’ and local advertise-
ments for his construction business listed his property
as the business’ address. From this evidence, the board
could have reasonably concluded, as it did, that the
plaintiff was operating a construction/contractor’s yard
on his property.
The only evidence in the record that the plaintiff had
a permit to operate a nursery and that he was doing so
was the statement by Chapdelaine that the plaintiff had
approval to use his property for farm and nursery uses
and that he was in the process of developing his prop-
erty for a wholesale garden and farm material business.
The board was not required to credit Chapdelaine’s
statement. ‘‘The credibility of witnesses and the deter-
mination of issues of fact are matters within the prov-
ince of the administrative board.’’ O’Donnell v. Police
Commission, supra, 174 Conn. 426. In finding that the
activity taking place on the plaintiff’s property was
related to the operation of a construction/contractor’s
yard, the board rejected Chapdelaine’s argument that
the plaintiff was operating a nursery. It is evident from
the court’s memorandum of decision that it credited
the plaintiff’s statements at trial that he was operating
a nursery and that he had a permit to do so. However,
in an administrative appeal, the court is not permitted
to consider evidence that was not before the board,
such as the plaintiff’s statements at trial, or substitute its
judgment for that of the board. Id.; see also Municipal
Funding, LLC v. Zoning Board of Appeals, supra, 270
Conn. 453.
We also note that the record before the board does
not contain a copy of the plaintiff’s application for a
nursery permit or the permit itself. The only zoning
applications in the record are the plaintiff’s application
for a permit to build a storage facility on his property,
which the board acknowledged he had received, and
his application for the special exception for the con-
struction/contractor’s yard, subject to the conditions of
the site plan. The court, in determining that the plaintiff
possessed a permit to operate a nursery, referenced
the ‘‘Certified List of Papers of Record’’ filed by the
board on January 26, 2012. The certified list included
two documents labelled as ‘‘Nursery Inspection and
Registration Certificate # 264 issued [August 1, 2011]’’
and ‘‘Nursery Inspection and Registration Certificate #
264 issued 2006.’’ These documents were listed under
the heading ‘‘Supplemental documents added to certi-
fied list of record documents at the request of the plain-
tiff.’’ The board noted in a footnote to its filing that it
could not certify that any of the supplemental docu-
ments, including the nursery inspection and certificates,
were part of the record at the time of the public hear-
ings, but it did not object to the addition of the docu-
ments to the certified list of record documents.
Even if we assume that the nursery permits were in
the record before the board at the time of the public
hearings and that they were issued to the plaintiff for
his property, we continue to conclude that the board’s
decision to uphold the cease and desist order was sup-
ported by substantial evidence. The plaintiff attempted
to argue before the board that he was conducting a
nursery operation on his property. The board rejected
the plaintiff’s argument and found instead that the plain-
tiff was operating a construction/contractor’s yard with-
out satisfying the conditions of his site plan. The
plaintiff then appealed to the court and again made the
argument that he was operating a nursery. Unlike the
board, the court credited the plaintiff’s claims about
the nursery operation and referenced the nursery per-
mits as proof. However, ‘‘[i]f there is conflicting evi-
dence in support of the zoning [board’s] stated
rationale, the reviewing court . . . cannot substitute
its judgment as to the weight of the evidence for that
of the [board]. . . . The agency’s decision must be sus-
tained if an examination of the record discloses evi-
dence that supports any one of the reasons given.’’
(Internal quotation marks omitted.) Municipal Fund-
ing, LLC v. Zoning Board of Appeals, supra, 270 Conn.
453. ‘‘The question is not whether the trial court would
have reached the same conclusions but whether the
record before the board supports the board’s action.’’
O’Donnell v. Police Commission, supra, 174 Conn. 426.
As we have previously explained, there was ample evi-
dence from which the board could reasonably conclude
that the plaintiff was operating a construction/contrac-
tor’s yard on his property. Thus, the court improperly
sustained the plaintiff’s appeal on the ground that the
board’s decision to uphold the cease and desist order
was not supported by substantial evidence.
The judgment is reversed and the case is remanded
to the Superior Court with direction to render judgment
dismissing the plaintiff’s appeal.
In this opinion the other judges concurred.
1
The plaintiff raised a number of claims in his trial brief that were not
included in the appeal. Only the vagueness claim is before this court.
2
Practice Book § 10-60 (a) provides in relevant part: ‘‘Except as provided
in Section 10-66, a party may amend his or her pleadings or other parts of
the record or proceedings at any time subsequent to that stated in the
preceding section in the following manner:
‘‘(1) By order of judicial authority; or
‘‘(2) By written consent of the adverse party; or
‘‘(3) By filing a request for leave to file such amendment . . . .’’
3
We note that, even if we concluded that the construction/contractor’s
yard regulations were unconstitutionally vague, our decision would not
benefit the plaintiff. Under the regulations, only uses expressly authorized
in section 31 are permitted in commercial zones. If we were to hold that
the construction/contractor’s yard regulations were invalid, then no one
owning a commercially zoned property in Columbia would be able to use
that property as a construction/contractor’s yard, including the plaintiff. See
Gada v. Zoning Board of Appeals, 151 Conn. 46, 48, 193 A.2d 502 (1963)
(when zoning regulations are permissive in character, ‘‘[a]ny use which is
not specifically permitted is automatically excluded’’).