Lime Rock Park, LLC v. Planning & Zoning Commission

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LIME ROCK PARK, LLC v. PLANNING AND
ZONING COMMISSION OF THE
TOWN OF SALISBURY
(SC 20237)
(SC 20238)
(SC 20239)
Robinson, C. J., and Palmer, McDonald, Mullins,
Kahn, Ecker and Vertefeuille, Js.
Syllabus
Pursuant to the statute (§ 14-164a (a)) governing motor vehicle racing, such
racing ‘‘may be conducted at any reasonable hour of any week day or
after twelve o’clock noon on any Sunday,’’ and ‘‘[t]he legislative body
of the . . . town in which the race or exhibition will be held may issue
a permit allowing a start time prior to twelve o’clock noon on any
Sunday, provided no such race or exhibition shall take place contrary
to the provisions of any . . . town ordinances.’’
The plaintiff, which owns property in the town of Salisbury, brought an
administrative appeal in the trial court, challenging the validity of certain
amendments to the town’s zoning regulations concerning the racing of
motor vehicles that the defendant planning and zoning commission had
adopted in 2015. Motor vehicle racing had taken place on a racetrack
on the property since 1957, when the town had no zoning regulations.
In 1958, a group of town residents and entities brought a nuisance action
against the owners of the property at that time, alleging that the noise
and traffic associated with the racing activities interfered with the enjoy-
ment of their own properties. The trial court rendered judgment in 1959
for the plaintiffs and granted a permanent injunction prohibiting racing
activities on the property on Sundays, limiting mufflered racing activities
to certain times on weekdays, and prohibiting unmufflered racing except
during certain hours on Tuesdays, ten Saturdays a year, and certain
holidays. Shortly thereafter, the town adopted zoning regulations for
the first time, which allowed racing activities only during such hours
as permitted by statute. In 1966 and 1968, the parties to the nuisance
action entered into court approved stipulations that modified the court’s
original judgment with respect to, inter alia, certain aspects of unmuf-
flered racing activity but maintained the ban on racing on Sundays.
Sometime thereafter, the commission revised the zoning regulations to
provide that racing activities on racetracks were specifically restricted
to the hours permitted by the 1959 court order. The parties to the
nuisance action entered into another stipulation in 1988, and the judg-
ment was again modified accordingly. In 2013, the commission again
revised the zoning regulations to provide that racing activities on race-
tracks were restricted to the hours permitted by the 1959 court order
and the subsequent, related court orders. In 2015, the commission again
amended the regulations and, in doing so, stated that those amendments
were intended to maintain the status quo by codifying the restrictions
that already were in place by virtue of the prior revisions of the regula-
tions that incorporated by reference the previous court orders. The
plaintiff challenged the commission’s adoption of the 2015 amendments
on numerous grounds, including the provision of the amendments pro-
hibiting all racing activities on Sundays, which the plaintiff claimed was
preempted by § 14-164a (a). The trial court permitted L Co., a group of
entities and individuals who own property near the racetrack, to inter-
vene in the appeal. L Co. contended that the plaintiff had waived its
right to challenge the provision barring racing on Sunday because the
plaintiff’s predecessor in interest previously had stipulated to that limita-
tion on the use of the property, and the 2015 amendments were intended
to codify those stipulations. Following a trial, the court rejected L Co.’s
waiver argument, sustained the portion of the plaintiff’s appeal claiming
that the regulation prohibiting racing on Sunday was preempted by
§ 14-164a (a), and denied the plaintiff’s appeal in all other respects.
Thereafter, the plaintiff, the commission, and L Co. filed separate
appeals. Held:
1. The trial court correctly determined that the plaintiff did not waive its
right to challenge the provision of the 2015 amendments prohibiting
racing activities on the property on Sundays:
a. Although a stipulated judgment has attributes of a private contract, which
merely memorializes the bargained for position of the parties and gener-
ally may not be modified without the consent of the parties, a stipulated
judgment also is a final judicial order, the prospective provisions of a
court approved stipulated judgment are injunctive in nature, and the
court, therefore, retains ongoing jurisdiction over the stipulated judg-
ment during the duration of its existence and may modify it upon a
showing of changed circumstances; accordingly, there was no merit to
L Co.’s claims that the plaintiff’s predecessor in interest, by entering
into the stipulated judgments in 1966 and 1968 prohibiting racing on
Sundays, had permanently waived the right of its successors to seek a
modification to the stipulations, and that, by waiving its right to modify
the stipulations, the plaintiff’s predecessor in interest also had waived
its successor’s right to challenge zoning regulations that codified the
terms of the stipulations.
b. L Co.’s claim that, even if the stipulated judgments were injunctive in
nature, the plaintiff and its predecessor in interest waived the right to
challenge any modifications to the zoning regulations codifying the terms
of the stipulations because they continuously abided by those terms for
almost fifty years was unavailing, there having been no authority for
the proposition that a party waives its right to seek a modification of
an injunctive order, or to challenge the codification of such an order,
merely by abiding by its terms.
c. This court declined to review L Co.’s claim that, even if the stipulated
judgments were injunctive in nature and, therefore, subject to judicial
modification, the plaintiff waived its right to challenge the prohibition
on Sunday racing because the plaintiff and its predecessor in interest
did not bring an administrative appeal to challenge the commission’s
prior amendments to the regulations incorporating by reference the
court’s orders prohibiting Sunday racing: L Co. provided no authority
or analysis for the proposition that a party’s failure to challenge a zoning
amendment bars the party from challenging a subsequent amendment
that was intended to recodify the original amendment in different lan-
guage, and, therefore, the issue was inadequately briefed; moreover,
even if this court assumed that a party cannot challenge an amendment
to zoning regulations that merely recodifies a preexisting regulation
using different language, in light of comments made by the commission’s
counsel and L. Co. itself during deliberations on the adoption of the
2015 amendments, it was not clear that the purpose of the 2015 amend-
ments was merely to recodify the previous amendments, and L Co.
provided no analysis with respect to that issue.
2. The trial court incorrectly concluded that § 14-164a (a) preempted the
provision of the 2015 amendments prohibiting racing activities on Sun-
days: this court, having determined that the language of § 14-164a (a)
was not clear and unambiguous, examined extratextual sources and the
genealogy of the statute and concluded that § 14-164a (a) was prohibitory
for preemption purposes in that it was intended only to bar municipalities
from allowing racing activities that were statutorily prohibited, that is,
racing during unreasonable hours on weekdays and before 12 p.m. on
Sundays without a permit, and that it was not intended to confer the
absolute right to engage in motor vehicle racing activities that were
statutorily permitted; accordingly, § 14-164a (a) did not preempt the
more restrictive provision of the 2015 amendments prohibiting all racing
activities on Sundays; moreover, that interpretation of § 14-164a (a) as
prohibitory did not render the statute meaningless because it still barred
municipalities from allowing racing activities during unreasonable hours
on weekdays and before 12 p.m. on Sundays without a permit, and it
was of no consequence that § 14-164a (a) allows towns to adopt ordi-
nances that are more restrictive than the statute, whereas, in the present
case, the restrictions on racing activities on Sundays were imposed
by zoning regulation, because the words ‘‘ordinance’’ and ‘‘regulation’’
frequently are used interchangeably, and the plaintiff did not explain
why the legislature would have intended to limit the application of § 14-
164a (a) solely to enactments by a town’s legislative body via ordinance
and to exclude enactments by a town’s zoning commission via zoning reg-
ulation.
3. The trial court incorrectly concluded that the word ‘‘weekday,’’ as used
in the 2015 amendments, did not include Saturday and, accordingly, that
mufflered racing is prohibited on Saturdays under the 2015 amendments;
notwithstanding L Co.’s claim that the modern usage of the word ‘‘week-
day,’’ which was not specifically defined by the zoning regulations,
excludes both Saturday and Sunday, this court was persuaded, and both
the plaintiff and the commission agreed, that ‘‘weekday,’’ as used in
the 2015 amendments, was intended to include Saturday, as numerous
dictionaries define ‘‘weekday’’ to include Saturday, this court’s older
case law used the word ‘‘weekday’’ to refer to any day of the week other
than Sunday, and the language used in the 1959 memorandum of decision
in the nuisance action, as well as in the language of the 1988 stipulation
and a certain provision of the 2015 amendments, all strongly suggested
that the word ‘‘weekday’’ was meant to include Saturday.
4. The trial court correctly concluded that the provision of the 2015 amend-
ments restricting unmufflered racing activities did not constitute a noise
control ordinance for purposes of the Noise Pollution Control Act (§ 22a-
73) and, therefore, did not require the approval of the Commissioner
of Energy and Environmental Protection in order for it to be effective;
the 2015 amendments contemplated two distinct uses of the property
in question, namely, mufflered racing and unmufflered racing, those
uses had two different noise levels, the regulations provided different
operating days and times for those different activities, and a zoning
regulation that differentiates between distinct land uses that produce
different noise levels for purposes of determining whether a specific
use is appropriate for a property does not by itself specify noise levels
and, therefore, does not constitute a municipal noise control ordinance
for purposes of § 22a-73.
5. The trial court incorrectly determined that the commission acted within its
authority when it adopted, as part of the 2015 amendments, regulations
requiring that the plaintiff obtain a special permit and site plan as a
condition to filing a petition seeking an amendment to the 2015 amend-
ments, and, because those regulations arbitrarily restricted the persons
who could seek an amendment to the zoning regulations, they were
invalid: the commission’s claim that the plaintiff lacked standing to
challenge the special permit requirement because it did not bar the
plaintiff from filing a petition seeking an amendment to the regulations
was unavailing, as the plaintiff was adversely affected by such a require-
ment; furthermore, both the commission and L Co. conceded that, under
the special permit requirement, persons other than the plaintiff who
were affected by the racing activities on the property and the 2015
amendments regulating those activities, such as neighboring landown-
ers, would not be able to seek an amendment to the 2015 amendments,
and such a restriction on the classes of affected persons who could
seek an amendment to the zoning regulations was therefore arbitrary.
Argued November 13, 2019—officially released May 22, 2020*
Procedural History
Appeal challenging the validity of certain amend-
ments to the zoning regulations of the town of Salisbury
pertaining to the operation of racetracks and uses
accessory to racetracks, brought to the Superior Court
in the judicial district of Litchfield, where Lime Rock
Citizens Council, LLC, was permitted to intervene as a
defendant; thereafter, the case was tried to the court,
J. Moore, J.; judgment sustaining in part the appeal;
subsequently, the court granted the parties’ motions to
reargue; thereafter, the court opened and amended its
judgment, from which the parties filed separate appeals.
Reversed in part; judgment directed.
Timothy S. Hollister, with whom were Andrea L.
Gomes and, on the brief, Joette Katz and Jessica Colin-
Greene, for the appellant in Docket No. SC 20237 and
the appellee in Docket Nos. SC 20238 and SC 20239
(intervening defendant).
Charles R. Andres, for the appellant in Docket No.
SC 20238 and the appellee in Docket Nos. SC 20237
and SC 20239 (named defendant).
Maureen Danehy Cox, with whom were James K.
Robertson, Jr., and Jennifer Sills Yoxall, for the appel-
lant in Docket No. SC 20239 and the appellee in Docket
Nos. SC 20237 and SC 20238 (plaintiff).
VERTEFEUILLE, J. These appeals arise from the
adoption by the defendant, the Planning and Zoning
Commission (commission) of the Town of Salisbury
(town), of certain amendments to the town’s zoning
regulations restricting motor vehicle racing activities
on property owned by the plaintiff, Lime Rock Park,
LLC. The plaintiff appealed to the trial court from the
adoption of the amendments. Thereafter, the interven-
ing defendant, Lime Rock Citizens Council, LLC (coun-
cil), filed a motion to intervene in the appeal, which
the trial court granted. After a trial to the court, the court
sustained the plaintiff’s appeal in part and dismissed it
in part. All three parties appealed from the decision,
raising numerous claims.1 We conclude that the trial
court incorrectly (1) sustained the portion of the plain-
tiff’s appeal claiming that the provision of the amended
regulations prohibiting racing activities on Sundays was
preempted by General Statutes § 14-164a (a),2 (2) denied
the portion of the appeal claiming that the commission
lacked the authority to condition the filing of a petition
to amend the regulations on obtaining a special permit,
and (3) concluded that the amended regulations prohib-
ited racing activities on Saturdays. We further conclude
that the trial court correctly (1) determined that the
plaintiff did not waive its right to challenge the regula-
tion prohibiting Sunday racing, and (2) denied the por-
tion of the plaintiff’s appeal claiming that the amend-
ments’ restrictions on unmufflered racing are subject
to the provision of General Statutes § 22a-73 (c), requir-
ing the Commissioner of Energy and Environmental
Protection to approve municipal noise control ordi-
nances. Accordingly, we affirm in part and reverse in
part the trial court’s judgment.
The record reveals the following facts, which were
found by the trial court or that are undisputed, and
procedural history. It is appropriate to warn the reader
at the outset that these facts reveal a long and complex
history of disagreement between the owners of the
property on which the racing activities take place and
neighboring landowners regarding the use of the prop-
erty. The plaintiff owns property located at 497 Lime
Rock Road in the town (property). Since 1957, motor
vehicle races and other contests and demonstrations
of speed and skill have been conducted on a racetrack
located on the property. In addition, the property has
been the site of automobile shows and exhibitions, food
concessions, camping, and television, movie and radio
productions, with the associated use of lighting and
sound equipment. At the time that these activities com-
menced in 1957, the town had no zoning regulations.
In 1958, a group of town residents and entities
brought a nuisance action against the then owners of
the property, in which they alleged that the racing activi-
ties on the property generated excessive noise, traffic
and disruptive behavior that interfered with the plain-
tiffs’ enjoyment of their property. See Adams v. Vaill,
158 Conn. 478, 480, 262 A.2d 169 (1969) (Vaill III) (dis-
cussing allegations of original nuisance action). After
a hearing, the trial court in the nuisance action rendered
judgment in favor of the plaintiffs and granted a perma-
nent injunction prohibiting the property owners from
conducting racing activities on Sundays. In addition,
the injunction limited mufflered racing activities to
weekdays between 9 a.m. and 10 p.m., and prohibited
unmufflered racing except during specified hours on
Tuesdays, ten Saturdays per year, and certain holidays.
See Adams v. Vaill, Superior Court, judicial district of
Litchfield, Docket No. 15,459 (May 12, 1959) (Vaill I);
see also Vaill III, supra, 480–81.
Shortly after the trial court rendered judgment in
Vaill I, the town adopted zoning regulations for the first
time. The regulations placed the property in a ‘‘Rural
Enterprise’’ zoning district, in which a track for racing
motor vehicles and accessory uses were permitted uses.
Salisbury Zoning Regs. (1959) § 8.1.17. The regulations
also allowed racing ‘‘during such hours as are permitted
by [s]tatute.’’ Id., § 8.1.17.1. At the time, the controlling
statute provided that ‘‘any race, contest or demonstra-
tion of speed or skill with a motor vehicle as a public
exhibition . . . may be conducted at any reasonable
hour of any week day or after the hour of two o’clock
in the afternoon of any Sunday, provided no such race
or exhibition shall take place contrary to the provisions
of any city, borough or town ordinances.’’ General Stat-
utes (1958 Rev.) § 29-143 (a).
In 1966, the parties to the Vaill case entered into a
stipulation providing that the judgment in Vaill I would
be modified to provide that the prohibition of Sunday
racing applied to both mufflered and unmufflered rac-
ing, as well as several other changes. See Adams v.
Vaill, Superior Court, judicial district of Litchfield,
Docket No. 15,459 (March 2, 1966) (Vaill II) (stipulation
between parties). The judgment was again modified in
1968 by a court order prohibiting unmufflered racing
on the property. See Adams v. Vaill, Superior Court,
judicial district of Litchfield, Docket No. 15,459 (August
26, 1968), aff’d, 158 Conn. 478, 262 A.2d 169 (1969).
The impetus for this modification was the legislature’s
amendment of General Statutes (Cum. Supp. 1967) § 14-
80 (c) to provide that the use of unmufflered motor
vehicles was prohibited not only on public streets, but
in all locations. See Vaill III, supra, 158 Conn. 482–84;
see also Public Acts 1967, No. 846 (deleting words
‘‘while such motor vehicle is being operated upon a
street or highway’’ from statute prohibiting use of motor
vehicles without mufflers).
In 1977 and 1978, a flurry of appeals were brought
from certain decisions of the Salisbury Zoning Board
of Appeals to the trial court regarding the activities that
were permitted on the property (ZBA actions). The ZBA
actions were resolved when the parties entered into a
stipulation restricting the use of the property by camp-
ers and the hours that campers would be permitted to
use the track entrance, as well as restricting the parking
of nonofficial motor vehicles during certain hours of
the day. Judgment was rendered accordingly in each
of the ZBA actions (ZBA judgments).
At some point after March 11, 1974—the date on
which the second revision to the Salisbury zoning regu-
lations was adopted—and before February 23, 1981—
the date on which the sixth revision was adopted—
the commission amended the regulations applicable to
racing activities on the property to provide that ‘‘[n]o
races shall be conducted on any such track except
during such hours as are permitted by [c]ourt [o]rder
dated [May 12, 1959],’’ the date of the judgment in Vaill
I.3 Salisbury Zoning Regs. (1985) § 415.1. Before that
amendment, the regulations continuously had provided
that no races could be conducted ‘‘except during such
hours as are permitted by [s]tatute.’’ See Salisbury Zon-
ing Regs. (1959) § 8.1.17.1; Salisbury Zoning Regs.
(1974) § 415.1. In 1975, the commission again amended
the regulations to provide that the operation of a com-
mercial racetrack was a special permit use.4 See Salis-
bury Zoning Regs. (1985) § 412.
In 1988, the parties to the Vaill case5 entered into a
stipulation to prohibit motorcycle racing on the prop-
erty and to allow some unmufflered racing in recogni-
tion of the legislature’s amendment to General Statutes
(Supp. 1969) § 14-80 (c) in 1969 to provide an exception
to the prohibition on using a motor vehicle without a
muffler when the vehicle is operated in a race. See
Adams v. Vaill, Superior Court, judicial district of Litch-
field, Docket No. 15,459 (March 21, 1988) (Vaill IV)
(stipulation between parties); see also Public Acts 1969,
No. 17, § 1. The judgment was modified accordingly.6
In 2013, the commission amended the regulations to
provide that ‘‘[n]o races shall be conducted on any such
track except during such hours as permitted by [c]ourt
[o]rder dated [May 12, 1959] and subsequent related
[c]ourt [o]rders on file in the Planning and Zoning
Office, or the Town Clerk’s Office.’’ Salisbury Zoning
Regs. (2013) § 221.2 (a).
The amendments to the town’s zoning regulations
that are the subject of the present appeals were adopted
on November 16, 2015 (2015 amendments).7 In its ruling
approving the amendments, the commission stated that
the amendments were intended to maintain the status
quo by codifying the restrictions on racing activities
that were already part of the town’s zoning scheme
by virtue of the previous regulations incorporating the
terms of the stipulated judgment in Vaill IV and the
ZBA judgments. The plaintiff appealed from the com-
mission’s adoption of the amendments pursuant to Gen-
eral Statutes §§ 8-8 and 8-9 on the ground that the com-
mission had ‘‘acted illegally, arbitrarily, capriciously
and in abuse of its discretion’’ when it adopted them.
Specifically, the plaintiff contended that the amend-
ments violated the requirement of General Statutes § 8-
28 that zoning regulations be in conformity with the
comprehensive plan; § 8-2 does not authorize the com-
mission to engraft restrictions contained in judicial
judgments into the zoning regulations; and the amend-
ments did not serve any legitimate land use purpose.
In addition, the plaintiff contended that the regulations
limiting days and hours of racing activities were pre-
empted by § 14-164a (a); the regulations restricting
unmufflered racing improperly regulated noise in viola-
tion of the requirement of § 22a-73 (c) that the Commis-
sioner of Energy and Environmental Protection approve
municipal noise control ordinances; the commission
exceeded its authority under General Statutes § 8-3 (c)
by requiring the plaintiff to file an application for a
special permit, as well as a site plan, as a condition for
seeking an amendment to the regulations; the regula-
tions constituted illegal spot zoning; and the regulations
did not conform to the town’s plan of conservation and
development. The commission and the council disputed
these claims. In addition, the council contended that
the plaintiff had waived its right to challenge the provi-
sion of the 2015 amendments prohibiting Sunday racing
because its predecessor in interest had stipulated to
that limitation on the use of the property in Vaill II
and Vaill IV, which the amendments were intended
to codify.
After a trial, the trial court concluded that the com-
mission had not exceeded the authority conferred by
§ 8-2 when it adopted the 2015 amendments incorporat-
ing the terms of the stipulated judgments in Vaill II
and Vaill IV and the ZBA judgments; § 14-164a (a) did
not preempt the commission from regulating the hours
of racing activities on weekdays but did preempt the
commission from prohibiting racing on Sundays; the
restrictions on unmufflered racing do not constitute a
noise control ordinance subject to § 22a-73 (c); it was
within the commission’s authority to require the plain-
tiff to file an application for a special permit before
it could seek an amendment to the regulations; the
amendments did not constitute illegal spot zoning; and
the amendments conformed to the town’s plan of con-
servation and development.9 In addition, the court
determined that, because the amendments permitted
mufflered racing only on any ‘‘weekday,’’ which the
court concluded means Monday through Friday, they
did not allow mufflered racing on Saturdays.10 The court
rejected the council’s claim that the plaintiff, through
its predecessor in interest, had waived any right to
challenge the prohibition on Sunday racing when it
entered into the stipulations that the amendments were
intended to codify. Accordingly, the court sustained the
portion of the plaintiff’s appeal challenging § 221.1 (a)
(1) of the 2015 amendments, which prohibits all racing
activities on Sundays; see footnote 7 of this opinion;
and denied the appeal in all other respects.
These appeals followed. See footnote 1 of this opin-
ion. The council claims in its appeal that the trial court
incorrectly determined that the plaintiff had not waived
its right to challenge the 2015 amendments’ prohibition
on Sunday racing. In addition, both the council and the
commission claim that the court incorrectly determined
that § 14-164a (a) preempts the regulation prohibiting
racing activities on Sundays. The plaintiff contends that
the trial court incorrectly concluded that (1) the 2015
amendments allow mufflered racing only on any week-
day, which does not include Saturdays,11 (2) if the 2015
amendments prohibit mufflered racing on Saturdays,
that prohibition was not preempted by § 14-164a (a),
(3) the 2015 amendments’ restrictions on unmufflered
racing are not subject to the provisions of § 22a-73 (c),
and (4) the commission had the authority to adopt the
regulations requiring the plaintiff to obtain a special
permit as a precondition to seeking an amendment to
the regulations.
I
Because it is potentially dispositive, we first address
the council’s claim that the plaintiff waived its right to
challenge § 221.1 (a) (1) of the 2015 amendments, which
prohibits racing activities on the property on Sundays,
because its predecessor in interest stipulated in Vaill
II and Vaill IV to that limitation on the use of the
property, and the plaintiff and its predecessor have
continuously abided by those stipulations.12 The council
contends that, unlike an injunctive order, a stipulated
judgment is a contract between the parties and is not
subject to later modification by the trial court in light of
changed circumstances. In addition, the council claims
that, even if the stipulated judgments were subject to
modification, the plaintiff waived its right to challenge
the prohibition on Sunday racing when it and its prede-
cessor in interest failed to appeal from previous amend-
ments to the zoning regulations that codified the terms
of the stipulated judgments. The plaintiff contends that
it did not waive its right to challenge the prohibition
on Sunday racing because (1) the stipulated judgments
were injunctive in nature, and courts always retain juris-
diction to modify injunctions in light of changed circum-
stances, and (2) even if the plaintiff waived its right to
seek later modifications of the stipulated judgments,
that waiver does not apply to its right to challenge the
amendments to the zoning regulations. We agree with
the plaintiff that the stipulated judgments were injunc-
tive in nature and, therefore, were subject to the ongo-
ing jurisdiction of the trial court to modify them in light
of changed circumstances. Accordingly, we reject the
council’s claim that the plaintiff waived its right to chal-
lenge the prohibition on Sunday racing.
We begin with the standard of review. Ordinarily,
whether a person has waived a right is a question of
fact subject to review for clear error. See AFSCME,
Council 4, Local 704 v. Dept. of Public Health, 272
Conn. 617, 622, 866 A.2d 582 (2005). ‘‘[W]hen a trial
court makes a decision based on pleadings and other
documents, [however] rather than on the live testimony
of witnesses, we review its conclusions as questions of
law.’’ State v. Lewis, 273 Conn. 509, 516–17, 871 A.2d
986 (2005). Because the trial court’s determination in
the present case was based solely on the pleadings and
stipulated judgments, our review is plenary.
We next review the substantive law of waiver.
‘‘Waiver is the intentional relinquishment or abandon-
ment of a known right or privilege.’’ (Internal quotation
marks omitted.) AFSCME, Council 4, Local 704 v. Dept.
of Public Health, supra, 272 Conn. 623. ‘‘Waiver is based
upon a species of the principle of estoppel and where
applicable it will be enforced as the estoppel would be
enforced. . . . Estoppel has its roots in equity and
stems from the voluntary conduct of a party whereby
he is absolutely precluded, both at law and in equity,
from asserting rights [that] might perhaps have other-
wise existed . . . . Waiver does not have to be
express, but may consist of acts or conduct from which
waiver may be implied. . . . In other words, waiver
may be inferred from the circumstances if it is reason-
able to do so.’’ (Citations omitted; internal quotation
marks omitted.) Id.
In support of its claim that the plaintiff waived its
right to challenge the 2015 amendments’ prohibition on
Sunday racing, the council relies heavily on the princi-
ple that a stipulated judgment constitutes ‘‘a contract
of the parties acknowledged in open court and ordered
to be recorded by a court of competent jurisdiction.’’
Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192
(1956). ‘‘The essence of the [stipulated] judgment is that
the parties to the litigation have voluntarily entered into
an agreement setting their dispute or disputes at rest
and that, upon this agreement, the court has entered
judgment conforming to the terms of the agreement.’’
Id. ‘‘It necessarily follows that if the judgment conforms
to the stipulation it cannot be altered or set aside with-
out the consent of all the parties, unless it is shown
that the stipulation was obtained by fraud, accident or
mistake.’’ Id., 460–61.
Thus, the council contends that (1) unlike an ordinary
judgment granting a permanent injunction in a private
nuisance action, which can be modified if relevant cir-
cumstances change; see Vaill III, supra, 158 Conn. 482
(‘‘[i]t cannot be doubted that courts have inherent
power to change or modify their own injunctions where
circumstances or pertinent law have so changed as to
make it equitable to do so’’); a stipulated judgment in
a private nuisance action cannot be modified in the
absence of a showing of fraud, accident or mistake,
and (2) when a party has stipulated to a permanent,
unmodifiable limitation on the use of a particular prop-
erty in a private nuisance action, the party has implicitly
waived the right to challenge any zoning regulation
that is consistent with that limitation.13 In other words,
the council contends the plaintiff’s predecessor in inter-
est waived the right to challenge any zoning regulation
codifying the terms of the stipulated judgments because
the stipulations were not modifiable injunctions.
We are not persuaded. Although a stipulated judg-
ment has attributes of a private contract that ‘‘merely
memorializes the bargained for position of the parties’’;
Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983);
‘‘[t]he terms of [a stipulated judgment or consent]
decree, unlike those of a simple contract, have unique
properties. A consent decree has attributes of both a
contract and of a judicial act.’’ Id.; see also id. (‘‘[a]
consent decree . . . is also a final judicial order’’).
Accordingly, ‘‘[o]nce approved, the prospective provi-
sions of the consent decree operate as an injunction.
. . . The injunctive quality of consent decrees compels
the court to: [1] retain jurisdiction over the decree dur-
ing the term of its existence . . . [2] protect the integ-
rity of the decree with its contempt powers . . . and
[3] modify the decree should changed circumstances
subvert its intended purpose.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.) Id.
Similarly, the court in Mendly v. Los Angeles, 23 Cal.
App. 4th 1193, 28 Cal. Rptr. 2d 822 (1994), observed
that, ‘‘[i]n a stipulated judgment, or consent decree,
litigants voluntarily terminate a lawsuit by assenting to
specified terms, which the court agrees to enforce as
a judgment. . . . As the [California Supreme Court]
has recognized, stipulated judgments bear the earmarks
both of judgments [rendered] after litigation and con-
tracts derived through mutual agreement . . . . It is
settled that where there has been a change in the con-
trolling facts upon which a permanent injunction was
granted, or the law has been changed, modified or
extended, or where the ends of justice would be served
by modification or dissolution, the court has the inher-
ent power to vacate or modify an injunction where
the circumstances and situation of the parties have so
changed as to render such action just and equitable.
. . . This principle governs even though the judgment
providing the injunctive relief is predicated upon stipu-
lation of the parties.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 1206–1207; see also Carson v.
American Brands, Inc., 450 U.S. 79, 84 n.9, 101 S. Ct.
993, 67 L. Ed. 2d 59 (1981) (characterizing prospective
relief obtained in consent decree as injunctive); Steele
v. Guardianship & Conservatorship of Crist, 251 Kan.
712, 719–20, 840 P.2d 1107 (1992) (quoting Williams v.
Vukovich, supra, 720 F.2d 920, with approval); 46 Am.
Jur. 2d 569, Judgments § 190 (2017) (‘‘[P]rospective pro-
visions of a consent decree operate as an injunction.
This injunctive quality compels the court to: (1) retain
jurisdiction over the decree during the terms of its exis-
tence; (2) protect the integrity of the decree with its
contempt powers; and (3) modify the decree should
changed circumstances subvert its intended purpose.’’
(Footnote omitted.));14 cf. Housing Authority v.
Lamothe, 225 Conn. 757, 767, 627 A.2d 367 (1993) (‘‘[a]
stipulated judgment, although obtained by the consent
of the parties is binding to the same degree as a judg-
ment obtained through litigation’’ (emphasis added;
internal quotation marks omitted)).
We agree with these authorities that the prospective
provisions of a stipulated judgment are injunctive in
nature and, therefore, may be modified by the court
upon a showing of changed circumstances. We further
note that the council does not dispute that a stipulated
judgment can always be modified by consent of all of
the parties. See Gillis v. Gillis, 214 Conn. 336, 340, 572
A.2d 323 (1990). We therefore reject the council’s claim
that, by entering into the stipulated judgments, the
plaintiff’s predecessor in interest somehow perma-
nently waived the right of its successors in interest to
seek any modification of the stipulations. Accordingly,
we reject the council’s claim that, by waiving its right
to modify the stipulations, the plaintiff’s predecessor in
interest waived its successors’ right to challenge zoning
regulations that codified the terms of the stipulations.
To the extent that the council claims that, even if
the stipulated judgments were injunctive in nature, the
plaintiff and its predecessor in interest waived the right
to challenge any modifications to the zoning regulations
that codified the stipulations by abiding by their terms
for almost fifty years, we disagree. We are unaware of
any authority for the proposition that a party waives
the right to seek a modification of an injunctive order
by abiding by its terms, much less that the party waives
the right to challenge the codification of the various
orders and stipulations in zoning regulations.15
The council finally claims that the plaintiff waived
its right to challenge the 2015 amendments’ prohibition
on Sunday racing when it and its predecessor in interest
failed to challenge previous regulations that prohibited
Sunday racing, specifically, the 1975 amendment pro-
viding that ‘‘[n]o races shall be conducted on any such
track except during such hours as are permitted by
[c]ourt [o]rder dated [May 12, 1959, in Vaill I]’’; Salis-
bury Zoning Regs. (1985) § 415.1; and the 2013 amend-
ment, which provided that ‘‘[n]o races shall be con-
ducted on any such track except during such hours as
permitted by [c]ourt [o]rder dated [May 12, 1959, in
Vaill I] and subsequent related [c]ourt [o]rders on file
in the Planning and Zoning Office, or the Town Clerk’s
Office.’’ Salisbury Zoning Regs. (2013) § 221.2 (a). The
council contends that the plaintiff ‘‘forfeit[ed]’’ its right
to appeal because the 2015 amendments merely recodi-
fied the previous prohibition on Sunday racing activ-
ities.
We decline to review this claim because it is inade-
quately briefed. First, the council has provided no
authority or analysis to support its claim that a party’s
failure to challenge a zoning amendment bars the party
from challenging a subsequent amendment that was
intended to recodify the original amendment in different
language.16 Second, and perhaps more fundamental, it
is far from clear that the purpose of the 2015 amend-
ments was merely to recodify the previous amend-
ments, and the council has provided no analysis on that
issue.17 Specifically, although it is clear that, before the
2015 amendments were adopted, the substance of the
regulations would be effectively modified whenever the
judgment in the Vaill case was modified, it is not entirely
clear whether that feature of the regulations survived
the amendments. As the trial court noted, counsel for
the commission, Charles R. Andres, acknowledged, dur-
ing a November 16, 2015 meeting of the commission
to deliberate on the 2015 amendments, that the 2013
amendment was ambiguous as to whether its reference
to the ‘‘[c]ourt [o]rder . . . and subsequent related
[c]ourt [o]rders’’ was intended to include modifications
to the injunction in Vaill I that were made subsequent
to the adoption of the amendment. Salisbury Zoning
Regs., (2013) § 221.2 (a). Andres questioned whether an
arrangement under which the town’s zoning regulations
would be effectively amended by modifying an injunc-
tion in a private nuisance action would be legal, but
he acknowledged that the 2013 amendment could be
interpreted in that manner and argued that the 2015
amendments were intended to remove that ambiguity.18
Moreover, in the council’s written presentation to the
commission in support of the proposed amendments,
which was presented to the town on October 19, 2015,
the council contended that the use of the property was
controlled by various orders and stipulations in the
Vaill case, that ‘‘the burden of monitoring, enforcing,
and reacting to proposed modifications to the injunc-
tions and stipulations, and expansions or modifications
of operations, is placed on the private parties [to the
Vaill case]’’; (emphasis omitted); and that the amend-
ments were necessary to bring the racing activities on
the property ‘‘under the control of the town through
its zoning regulations.’’ The council also pointed out
that the plaintiff was attempting to expand racing activi-
ties on the property in its September 4, 2015 motion to
modify the injunction in the Vaill case; see footnote 6
of this opinion; thereby ‘‘underscor[ing]’’ the need for
the zoning regulations.
Thus, the council implicitly acknowledged in the pro-
ceedings before the commission that the 2013 amend-
ment left control of the hours that racing activities
would be permitted on the property to the ongoing
jurisdiction of the trial court in the Vaill nuisance
action, that, if the trial court in Vaill were to modify
the injunction to eliminate the prohibition on Sunday
racing activities, the 2013 amendment would not oper-
ate independently to prohibit them, and that the 2015
amendments were intended to remedy that situation.
Indeed, the commission stated expressly in its reasons
for approving the 2015 amendments that one reason was
to ‘‘eliminate the possibility that the zoning regulations
could be deemed to be amended if there were to be an
amendment to a court judgment in the Vaill [case].’’ If
the 2015 amendments in fact had that effect, they would
not merely have recodified the 2013 amendment,
because, unlike that amendment, they froze in time the
restrictions on the use of the property that were already
in place in the Vaill case, subject only to the procedures
for amending zoning regulations. Even if we were to
assume that the council is correct that a party cannot
challenge an amendment to zoning regulations that
merely recodifies a preexisting regulation, the council
provides no analysis explaining why that change would
not be substantive or, if it was, why the plaintiff would
be barred from challenging it because it failed to chal-
lenge the 2013 amendment. Accordingly, for all of the
foregoing reasons, we reject the council’s claim that
the trial court incorrectly determined that the plaintiff
did not waive its right to challenge the 2015 amend-
ments’ prohibition on Sunday racing.
II
We next address the defendant’s claim that the trial
court incorrectly determined that § 14-164a (a) pre-
empts § 221.1 (a) (1) of the 2015 amendments, prohib-
iting racing activities on the property on Sundays.19 We
conclude that § 14-164a (a) is a prohibitory statute20
and does not preempt zoning regulations restricting the
hours of racing activities on the property on any day
of the week or hour of the day, or regulations prohib-
iting such activities altogether.
The issues raised by the parties require us to interpret
§ 14-164a (a). ‘‘Issues of statutory construction raise
questions of law, over which we exercise plenary
review. . . . When construing a statute, [o]ur funda-
mental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
The test to determine ambiguity is whether the statute,
when read in context, is susceptible to more than one
reasonable interpretation. . . . When a statute is not
plain and unambiguous, we also look for interpretive
guidance to the legislative history and circumstances
surrounding its enactment, to the legislative policy it
was designed to implement, and to its relationship to
existing legislation and [common-law] principles gov-
erning the same general subject matter . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Moreno-Hernandez, 317 Conn. 292, 299, 118 A.3d
26 (2015).
We next review the legal principles governing statu-
tory preemption of local regulations. ‘‘[A] local ordi-
nance is preempted by a state statute whenever the
legislature has demonstrated an intent to occupy the
entire field of regulation on the matter . . . or . . .
whenever the local ordinance irreconcilably conflicts
with the statute. . . . Whether an ordinance conflicts
with a statute or statutes can . . . be determined [only]
by reviewing the policy and purposes behind the statute
and measuring the degree to which the ordinance frus-
trates the achievement of the state’s objectives.’’ (Inter-
nal quotation marks omitted.) Bauer v. Waste Manage-
ment of Connecticut, Inc., 234 Conn. 221, 232, 662 A.2d
1179 (1995).
‘‘A test frequently used to determine whether a con-
flict exists is whether the ordinance permits or licenses
that which the statute forbids, or prohibits that which
the statute authorizes; if so, there is a conflict. If, how-
ever, both the statute and the ordinance are prohibitory
and the only difference is that the ordinance goes fur-
ther in its prohibition than the statute, but not counter
to the prohibition in the statute, and the ordinance does
not attempt to authorize that which the legislature has
forbidden, or forbid that which the legislature has
expressly authorized, there is no conflict.’’ (Internal
quotation marks omitted.) Id., 235.
As we noted, ‘‘[w]hether an ordinance conflicts with
a statute or statutes can . . . be determined [only] by
reviewing the policy and purposes behind the statute
and measuring the degree to which the ordinance frus-
trates the achievement of the state’s objectives. . . .
Therefore, [t]hat a matter is of concurrent state and
local concern is no impediment to the exercise of
authority by a municipality through the enactment of
an ordinance, so long as there is no conflict with the
state legislation. . . . Where the state legislature has
delegated to local government the right to deal with a
particular field of regulation, the fact that a statute also
regulates the same subject in less than full fashion does
not, ipso facto, deprive the local government of the
power to act in a more comprehensive, but not inconsis-
tent, manner. . . .
‘‘Therefore, merely because a local ordinance,
enacted pursuant to the municipality’s police power,
provides higher standards than a statute on the same
subject does not render it necessarily inconsistent with
the state law. Whether a conflict exists depends on
whether the ordinance permits or licenses that which
the statute forbids, or prohibits that which the statute
authorizes. If, however, both the statute and the ordi-
nance are prohibitory and the only difference is that
the ordinance goes further in its prohibition than the
statute, but not counter to the prohibition in the statute,
and the ordinance does not attempt to authorize that
which the legislature has forbidden, or forbid that which
the legislature has expressly authorized, there is no
conflict. . . . Where a municipal ordinance merely
enlarges on the provisions of a statute by requiring
more than a statute, there is no conflict unless the
legislature has limited the requirements for all cases.’’
(Citations omitted; internal quotation marks omitted.)
Modern Cigarette, Inc. v. Orange, 256 Conn. 105, 119–
20, 774 A.2d 969 (2001).
Thus, the question that we must address is whether
§ 14-164a (a) was intended only to prohibit racing activ-
ities during unreasonable hours on weekdays and
before noon on Sundays without a permit, as the council
and the commission claim, in which case the commis-
sion would not be preempted from adopting more
restrictive regulations, or, instead, the statute was
intended to confer the absolute right to conduct racing
activities during reasonable hours on weekdays and
after noon on Sundays, as the plaintiff claims, in which
case the statute would preempt more restrictive local
regulations.
We begin our analysis with a review of the language
of the statute. Section 14-164a (a) provides in relevant
part: ‘‘No person shall operate a motor vehicle in any
race, contest or demonstration of speed or skill with a
motor vehicle as a public exhibition except in accor-
dance with the provisions of this section. Such race or
exhibition may be conducted at any reasonable hour
of any week day or after twelve o’clock noon on any
Sunday. The legislative body of the city, borough or
town in which the race or exhibition will be held may
issue a permit allowing a start time prior to twelve
o’clock noon on any Sunday, provided no such race or
exhibition shall take place contrary to the provisions
of any city, borough or town ordinances. . . .’’
We conclude that § 14-164a (a) is ambiguous as to
whether it is prohibitory or, instead, confers a right to
engage in motor vehicle racing activities that conform
to the conditions of the statute. The first sentence of
§ 14-164a (a) is clearly prohibitory, and it strongly sug-
gests that the legislature believed that, left unregulated,
motor vehicle racing activities would be likely to create
a nuisance. Thus, for preemption purposes, it would be
reasonable to expect that the subsequent provisions of
the statute would specify the only conditions under
which towns have the authority to allow racing activi-
ties, not the conditions under which towns are required
to allow racing. Taken in isolation, however, the second
sentence reasonably can be read as conferring a right
to engage in racing activities during reasonable hours
on weekdays and after noon on Sundays, which would
preempt towns from imposing more restrictive regula-
tions. We conclude, therefore, that there is a tension
between these sentences that gives rise to ambiguity.
In reaching the conclusion that § 14-164a (a) is ambig-
uous, we acknowledge that the third sentence of the
statute allowing towns to issue permits to race before
noon on Sundays ‘‘provided no such race . . . shall
take place contrary to the provisions of any city, bor-
ough or town ordinances’’ (proviso clause) arguably
supports the plaintiff’s position that the statute confers
the absolute right to conduct racing activities during
reasonable hours on weekdays and before noon on
Sundays, because, if the statute were prohibitory, the
clause would be superfluous. General Statutes § 14-164a
(a). In other words, if the statute was intended only to
specify the conditions under which towns cannot allow
racing, the preemption doctrine would not prevent
towns from imposing stricter regulations, and there
would be no need for the legislature to expressly confer
the authority to do so. We also acknowledge that, as
the trial court concluded, the grammatical structure of
the third sentence and the statute as a whole supports
the interpretation that the proviso clause modifies only
the first clause of the third sentence and not the second
sentence.21 Finally, we acknowledge that, if the proviso
clause is not superfluous, and if it applies only to the
first clause of the third sentence of § 14-164a (a), it
would be reasonable to conclude that the second sen-
tence was intended to specify the racing activities that
towns cannot prohibit, not the only racing activities that
towns can allow. We conclude, however, that, although
these considerations arguably support the plaintiff’s
position that § 14-164a (a) preempts towns from prohib-
iting racing activities that the statute permits, with the
exception of racing activities before noon on Sundays,
they do not overcome the inherent ambiguity of the
statute. Accordingly, we may ‘‘look for interpretive guid-
ance to the legislative history and circumstances sur-
rounding its enactment, to the legislative policy it was
designed to implement, and to its relationship to
existing legislation and [common-law] principles gov-
erning the same general subject matter . . . .’’ (Internal
quotation marks omitted.) State v. Moreno-Hernandez,
supra, 317 Conn. 299.
In our search for guidance, we turn first to the geneal-
ogy of § 14-164a. As the trial court recognized, the legis-
lation that is now codified at § 14-164a (a) was first
enacted in 1935. See General Statutes (Cum. Supp. 1935)
§ 898c. Section 898c (a) provided that race contests
that were open to the public were prohibited unless
the Commissioner of State Police issued a certificate
approving the race, after determining that certain safety
conditions were met. In 1939, the statute was amended
to provide that the Commissioner of State Police was
authorized to provide a racing permit ‘‘naming a definite
date for such race or exhibition, which may be con-
ducted at any reasonable hour on any week day or after
the hour of two o’clock in the afternoon of any Sunday,
provided no such race or exhibition shall take place
contrary to the provisions of any city, borough or town
ordinances.’’ General Statutes (Supp. 1939) § 827e (a).
Thus, the statute made clear for the first time that towns
could prohibit racing activities on any day of the week
or hour of the day.
In 1973, the statute was again amended to provide
that the Commissioner of Motor Vehicles rather than
the Commissioner of State Police could issue a permit
for racing activities. See Public Acts 1973, No. 73-672,
codified at General Statutes (Rev. to 1975) § 14-164a
(a). The statute continued to provide that towns could
prohibit such activities altogether. In 1975, the statute
was amended to change the time that Sunday racing
activities could start from 2 p.m. to 12 p.m. See Public
Acts 1975, No. 75-404, § 1, codified at General Statutes
(Rev. to 1977) § 14-164a (a).
After the legislature made additional changes to § 14-
164a (a) in 1984 and 1985, the statute provided in rele-
vant part: ‘‘The Commissioner of Motor Vehicles, upon
receipt of such application and fee, shall cause an
inquiry to be made concerning the condition of the race
track or place of exhibition and all of the appurtenances
thereto and, if he finds no unusual hazard to participants
in such race or exhibition or to persons attending such
race or exhibition, he may issue a permit naming a
definite date for such race or exhibition, which may be
conducted at any reasonable hour of any week day or
after twelve o’clock noon on any Sunday, provided no
such race or exhibition shall take place contrary to the
provisions of any city, borough or town ordinances.
. . .’’ General Statutes (Rev. to 1987) § 14-164a (a).
Thus, towns were still expressly authorized to prohibit
any or all motor vehicle racing.
In 1998, § 14-164a (a) was again amended to provide
in relevant part:22 ‘‘The Commissioner of Motor Vehi-
cles, upon receipt of such application and fee, shall
cause an inquiry to be made concerning the condition
of the race track or place of exhibition and all of the
appurtenances thereto and, if he finds no unusual haz-
ard to participants in such race or exhibition or to
persons attending such race or exhibition, he may issue
a permit naming a definite date for such race or exhibi-
tion, which may be conducted at any reasonable hour
of any week day or after twelve o’clock noon on any
Sunday. [, provided] The Commissioner, with the
approval of the legislative body of the city, borough or
town in which the race or exhibition will be held, may
issue a permit allowing a start time prior to twelve
o’clock noon on any Sunday, provided no such race or
exhibition shall take place contrary to the provisions
of any city, borough or town ordinances. . . .’’ Public
Acts 1998, No. 98-182, § 3 (P.A. 98-182), codified at Gen-
eral Statutes (Rev. to 1999) § 14-164a (a).
The final amendment to § 14-164a (a) that is relevant
to this appeal was made in 2004. See 2004 Public Acts,
No. 04-199, § 11. The 2004 amendment made the follow-
ing changes:23 ‘‘No person shall operate a motor vehicle
in any race, contest or demonstration of speed or skill
with a motor vehicle as a public exhibition [until a
permit for such race or exhibition has been obtained
from the Commissioner of Motor Vehicles] except in
accordance with the provisions of this section. [Any
person desiring to manage, operate or conduct such a
motor vehicle race or exhibition shall make application
in writing to said commissioner at least ten days prior
to the race or exhibition and such application shall
set forth in detail the time of such proposed race or
exhibition, together with a description of the kind and
number of motor vehicles to be used and such further
information as said commissioner may require. Such
application shall be accompanied by a fee of seventy-
five dollars. The Commissioner of Motor Vehicles, upon
receipt of such application and fee, shall cause an
inquiry to be made concerning the condition of the race
track or place of exhibition and all of the appurtenances
thereto and, if the commissioner finds no unusual haz-
ard to participants in such race or exhibition or to
persons attending such race or exhibition, the commis-
sioner may issue a permit naming a definite date for
such] Such race or exhibition [, which] may be con-
ducted at any reasonable hour of any week day or after
twelve o’clock noon on any Sunday. The [commissioner,
with the approval of the] legislative body of the city,
borough or town in which the race or exhibition will
be held [,] may issue a permit allowing a start time prior
to twelve o’clock noon on any Sunday, provided no
such race or exhibition shall take place contrary to the
provisions of any city, borough or town ordinances.
. . .’’ Public Acts 2004, No. 04-199, § 11, codified at
General Statutes (Rev. to 2005) § 14-164a (a).
The plaintiff contends that, when the legislature
amended the statute in 1998 by splitting the second
sentence of the statute into two sentences and leaving
the proviso clause attached only to the third sentence
governing Sunday racing activities before noon, it
evinced an intent to confer the right to conduct racing
activities during reasonable hours on weekdays and
after noon on Sundays. For the following reasons, we
disagree.
As the foregoing genealogy of § 14-164a shows, and
the plaintiff does not dispute, from 1939 through 1998,
§ 14-164a (a) and its predecessor statutes expressly con-
templated that towns would have the authority to
restrict racing activities that were statutorily permitted
or to prohibit them altogether. Thus, during that period,
the statute was clearly prohibitory for preemption pur-
poses, that is, it barred towns from allowing racing
activities that were statutorily prohibited. It did not
require towns to allow racing activities that were statu-
torily permitted. It is reasonable to conclude that the
legislature enacted the statutory prohibition on racing
during unreasonable hours and on Sundays because it
believed that motor vehicle racing, with its attendant
noise, fumes, crowds, traffic congestion, danger to par-
ticipants and spectators, and other potential disrup-
tions, was likely to create a nuisance if not restricted
by statute. Indeed, § 14-164a (d) imposes criminal penal-
ties for violations of the statute. We cannot perceive
why, in 1998, the legislature would suddenly have spun
180 degrees and come to the conclusion that motor
vehicle racing is so socially valuable that it must be
protected from unduly burdensome regulation by
towns.
Indeed, nothing in the legislative history of P.A. 98-
182 suggests that the purpose of the amendment, which
split what previously had been one sentence into two
sentences and left the proviso clause attached to the
language in the new third sentence authorizing the Com-
missioner of Motor Vehicles to issue a permit for racing
activities before noon on Sunday subject to town
approval,24 was to divest towns of their preexisting
authority to further restrict or prohibit altogether racing
activities that the statute permitted. To the contrary,
José O. Salinas, the Commissioner of the Department
of Motor Vehicles, submitted written testimony on the
proposed legislation in which he stated that its purpose
was to ‘‘place the decision to extend the operating hours
of [motocross] racing on Sundays at the municipal level
. . . .’’ Conn. Joint Standing Committee Hearings,
Transportation, Pt. 2, 1998 Sess., p. 477; see also id.,
p. 374, remarks of Commissioner Salinas (purpose of
proposed legislation was ‘‘to allow municipalities to
extend [motocross] racing [before] noon on Sundays’’).
Thus, Salinas’ testimony shows that the purpose of the
amendment was to authorize municipalities to allow
racing before noon on Sundays, subject to the permit
requirement, not to deprive them of their preexisting
authority to prohibit racing activities after noon. If the
legislature had intended such a radical departure from
the policy underlying the original statute, it surely
would have discussed that reason for the change during
the debate on the proposed legislation and used clearer
language to express its intent.25 See, e.g., Stafford v.
Roadway, 312 Conn. 184, 195, 93 A.3d 1058 (2014) (‘‘It
is axiomatic that a radical departure from an established
policy cannot be implied. It must be expressed in
unequivocal language.’’ (Internal quotation marks omit-
ted.)). Accordingly, it is reasonable to conclude that
the legislature split the second sentence of § 14-164a
(a) into two sentences in 1998 simply because the sen-
tence had become unwieldy with the addition of the
new language, and that it left the proviso clause in its
previous location without realizing that the change in
sentence structure reasonably could be interpreted as
changing the function of the clause.
Moreover, under the plaintiff’s interpretation, § 14-
164a (a) would be simultaneously prohibitory and per-
missive. That is, it would both categorically prohibit
racing activities that do not meet the statutory criteria—
i.e., racing activities on weekdays during unreasonable
hours or before noon on Sunday without a permit26—
and confer an absolute right to conduct racing activities
that meet the statutory criteria. The plaintiff has cited
no other examples of statutes in which the legislature
has evinced an intent both to place restrictions on an
activity, presumably to mitigate its inherently danger-
ous and disruptive nature, and to confer an absolute
right to engage in the same activity. While we recognize
that such statutes may exist, it is reasonable to conclude
that they ordinarily would involve uses with extraordi-
nary social value, such as utilities or hospitals.27 There
is no indication that the legislature attached such value
to motor vehicle racing activities.
Finally, we cannot perceive why the legislature would
suddenly have concluded in 1998 that it was necessary
to impose a uniform statewide rule allowing motor vehi-
cle racing activities seven days a week, regardless of
the character of the area in which the activities take
place. As the commission points out, racing activities
on Sunday afternoons in an indoor arena in a nonresi-
dential, urban area may be entirely appropriate,
whereas the same activities on an outdoor track in a
heavily populated suburban location could be
extremely disruptive. We conclude, therefore, that § 14-
164a (a) does not preempt the provision of the 2015
amendments prohibiting racing activities on Sundays.28
In support of its claim to the contrary, the plaintiff
contends that, ‘‘under the [commission’s] interpreta-
tion, whether someone could conduct racing activities
would always be based on the zoning regulations. As
such, the [statutory seven day] grant [of permission to
conduct racing activities during reasonable hours on
weekdays, after noon on Sundays and before noon on
Sundays with a permit] would be of no effect—and thus
meaningless—with respect to whether someone could
conduct racing activities.’’ (Emphasis in original.) The
statute is not meaningless if it is prohibitory, however,
because it bars towns from allowing motor vehicle rac-
ing during unreasonable hours on weekdays and before
noon on Sundays without a permit, which they otherwse
would have the authority to do.
The plaintiff also contends that the trial court cor-
rectly concluded that the first sentence of General Stat-
utes § 8-13,29 which allows zoning commissions to adopt
regulations that are more restrictive than restrictions
imposed by statute, does not authorize towns to adopt
stricter temporal limitations on particular land uses
than those imposed by statute. The trial court con-
cluded that, under this court’s decision in Mallory v.
West Hartford, 138 Conn. 497, 500, 86 A.2d 668 (1952),
§ 8-13 authorizes zoning commissions only to adopt
stricter physical standards than those imposed by stat-
ute, such as the ‘‘size of yards, number of stories and
the like.’’ Even if that were the case, however, that
would mean only that § 8-13 simply does not apply
to the 2015 amendments, not that it renders the 2015
amendments unenforceable. In other words, if the trial
court were correct that the first sentence of § 8-13 did
not expressly authorize the commission to adopt the
2015 amendments because the statute applies only to
physical standards, then the second sentence providing
that, ‘‘[i]f the provisions of any other statute, bylaw,
ordinance or regulation require a greater width or size
of yards, courts or other open spaces or a lower height
of building or a fewer number of stories or a greater
percentage of lot area to be left unoccupied or impose
other and higher standards than are required by the
regulations made under authority of the provisions of
this chapter, the provisions of such statute, bylaw, ordi-
nance or regulation shall govern,’’ would not render the
amendments unenforceable. If § 8-13 does not apply to
the temporal restrictions of the 2015 amendments, they
would still be subject to common-law preemption prin-
ciples, under which towns acting through their zoning
commissions may adopt regulations that are more
restrictive than prohibitory statutes governing the same
subject matter. See, e.g., Modern Cigarette, Inc. v.
Orange, supra, 256 Conn. 119–20.
To the extent that the plaintiff contends that § 8-
13 effectively preempts the common-law preemption
doctrine as applied to statutes controlling land use, we
disagree. The preemption doctrine embodies common-
sense principles that are designed to ensure that the
legislative will is not overridden by municipal ordi-
nances and regulations. We can perceive no reason why
the legislature would have wanted to force courts that
are confronted with prohibitory land use statutes, like
§ 14-164a (a), to treat them as if they conferred the
absolute right to engage in the conduct that is not pro-
hibited, thereby changing the intended effect of the
statutes.30 Accordingly, we reject this claim.
Finally, the plaintiff contends that, even if § 14-164a
(a), like its predecessor statutes, allows towns to adopt
ordinances that are more restrictive than § 14-164a (a)
with respect to the hours during and days on which
racing activities can occur, the town’s zoning regula-
tions are not ordinances within the meaning of the
proviso clause of the third sentence of the statute.31 See
General Statutes § 14-164a (a) (‘‘provided no such race
. . . shall take place contrary to the provisions of any
city, borough or town ordinances’’). The plaintiff points
out that the legislature has always distinguished
between regulations and ordinances. See, e.g., General
Statutes § 8-13 (‘‘[i]f the regulations made under author-
ity of the provisions of this chapter require a greater
width or size of yards, courts or other open spaces or
a lower height of building or a fewer number of stories
or a greater percentage of lot area to be left unoccupied
or impose other and higher standards than are required
in any other statute, bylaw, ordinance or regulation,
the provisions of the regulations made under the provi-
sions of this chapter shall govern’’).32 In addition, the
plaintiff points out that ‘‘ordinance’’ is defined by Gen-
eral Statutes § 1-1 (n) as ‘‘an enactment under the provi-
sions of [General Statutes §] 7-157,’’ which, in turn,
provides that ‘‘[o]rdinances may be enacted by the legis-
lative body of any town . . . .’’ General Statutes § 7-
157 (a). Because a zoning commission is not the legisla-
tive body of a town, the plaintiff contends, it cannot
enact ordinances. The plaintiff further relies on this
court’s decision in Bora v. Zoning Board of Appeals,
161 Conn. 297, 288 A.2d 89 (1971), in which this court
held that, because General Statutes § 30-91 authorized
towns, ‘‘by [a] vote of a town meeting or by ordinance,
[to] reduce the number of hours during which [sales of
liquor] shall be permissible,’’ and because a board of
zoning appeals did not have the power to enact an
ordinance, the board exceeded its powers when it
granted a variance reducing the number of hours that
a café that served liquor could operate. (Internal quota-
tion marks omitted.) Id., 302; see General Statutes § 30-
91 (d).
The council claims that, to the contrary, when a town
creates a zoning commission, it delegates the town’s
legislative authority to control land use to that commis-
sion. Accordingly, any regulations adopted by the com-
mission are ordinances, just as they would be if enacted
by the town’s legislative body. See R. Fuller, 9 Connecti-
cut Practice Series: Land Use Law and Practice (4th
Ed. 2015) § 1:2, p. 5 (‘‘[a]ll of the land use statutes are
based upon the police power, which allows regulation
of use of property because uncontrolled use would be
harmful to the public interest’’); id., p. 6 (‘‘[m]unicipal
land use regulation must be carried out by ordinance,
and the ordinance must be consistent with the enabling
statute’’). The council and the commission also point
out that the words ‘‘ordinance’’ and ‘‘regulation’’ are
frequently used interchangeably by the legislature and
the courts. See, e.g., General Statutes § 8-2i (a) (refer-
ring to ‘‘any zoning regulation . . . imposed by ordi-
nance, regulation or pursuant to any special permit,
special exception or subdivision plan’’); General Stat-
utes § 15-91 (authorizing municipalities to adopt ‘‘air-
port zoning regulations’’); General Statutes § 19a-438
(c) (6) (referring to ‘‘the zoning ordinances of the munic-
ipality’’); General Statutes § 21a-62c (c) (referring to
‘‘municipal . . . zoning ordinances’’); General Statutes
§ 25-109g (a) (authorizing zoning commission to ‘‘revise
the zoning ordinances’’); General Statutes § 30-44 (refer-
ring to ‘‘the zoning ordinance of any city or town’’); see
also, e.g., NPC Offices, LLC v. Kowaleski, 320 Conn.
519, 531 n.5, 131 A.3d 1144 (2016) (referring to ‘‘zoning
ordinances’’); Bauer v. Waste Management of Connecti-
cut, Inc., supra, 234 Conn. 238 (referring to ‘‘the . . .
zoning ordinance’’); Fairlawns Cemetery Assn., Inc. v.
Zoning Commission, 138 Conn. 434, 437, 86 A.2d 74
(1952) (observing that ‘‘the zoning commission adopted
an ordinance’’); Berlin Batting Cages, Inc. v. Plan-
ning & Zoning Commission, 76 Conn. App. 199, 219,
821 A.2d 269 (2003) (‘‘the fact that [the statute at issue]
refers to local ordinances, while the commission has
labeled the enactment at issue . . . a zoning regula-
tion, is of no consequence’’ (emphasis in original)).
We agree with the council and the commission.
Although there may be circumstances under which the
distinction between the words ‘‘ordinance’’ and ‘‘regula-
tion’’ is significant, the words frequently are used inter-
changeably, and the plaintiff has not explained why
the legislature would have wanted to limit the proviso
clause of § 14-164a (a) and its predecessor statutes to
enactments by the legislative body of a town and to
exclude enactments by a zoning commission.33 Accord-
ingly, we reject this claim.
III
We next address the plaintiff’s claim that the trial
court incorrectly determined that the word ‘‘weekday,’’
as used in the 2015 amendments to the zoning regula-
tions, does not include Saturdays. We agree with the
plaintiff.
This claim requires us to interpret article § 221.1 (a)
(2) (A) of the 2015 amendments. See footnote 7 of this
opinion. ‘‘Because the interpretation of the regulations
presents a question of law, our review is plenary. . . .
Additionally, zoning regulations are local legislative
enactments . . . and, therefore, their interpretation is
governed by the same principles that apply to the con-
struction of statutes. . . . Moreover, regulations must
be interpreted in accordance with the principle that a
reasonable and rational result was intended . . . . The
process of statutory interpretation involves the determi-
nation of the meaning of the statutory language [or . . .
the relevant zoning regulation] as applied to the facts of
the case, including the question of whether the language
does so apply.’’ (Internal quotation marks omitted.)
Trumbull Falls, LLC v. Planning & Zoning Commis-
sion, 97 Conn. App. 17, 21–22, 902 A.2d 706 (2006).
Section 221.1 (a) (2) (A) provides that ‘‘[a]ctivity with
mufflered racing car engines shall be permitted . . .
[o]n any weekday between [9 a.m.] and [10 p.m.] pro-
vided, however, that such activity may continue beyond
the hour of [10 p.m.] without limitation on not more
than six . . . occasions during any one calendar year.’’
The town’s zoning regulations do not define ‘‘weekday.’’
Although the plaintiff acknowledges that the word can
refer to any day of the week except Saturday and Sun-
day, as the trial court found, it points out that a number
of dictionaries define ‘‘weekday’’ to include Saturdays.
See American Heritage College Dictionary (2d Ed. 1991)
p. 1371 (defining ‘‘weekday’’ as ‘‘1. [a]ny day of the week
except Sunday,’’ and ‘‘2. [a]ny day exclusive of the days
of the weekend’’); Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2003) p. 1418 (defining ‘‘weekday’’ as
‘‘a day of the week except Sunday or sometimes except
Saturday and Sunday’’); see also Webster’s New Interna-
tional Dictionary (2d Ed. 1957) p. 2896 (defining ‘‘week-
day’’ as ‘‘[a]ny day of the week except Sunday; a working
day’’). In addition, the plaintiff points out that a number
of older Connecticut cases use the word ‘‘weekday’’ to
refer to any day of the week except Sunday. See Mason
v. Board of Zoning Appeals, 143 Conn. 634, 635, 124 A.2d
920 (1956) (referring to ‘‘Sundays as well as weekdays’’);
Cadwell v. Connecticut Railway & Lighting Co., 84
Conn. 450, 456, 80 A. 285 (1911) (referring to ‘‘week
days and . . . Sundays’’); Frost v. Plumb, 40 Conn. 111,
116 (1873) (referring to ‘‘a week day, or . . . the Sab-
bath’’); Scofield v. Eighth School District, 27 Conn. 498,
499 (1858) (preliminary statement of facts and proce-
dural history) (referring to ‘‘week days and . . . Sun-
days’’). Accordingly, the plaintiff contends that ‘‘week-
day’’ is ambiguous.
In support of its contention that, as used in § 221.1 (a)
(2) (A) of the 2015 amendments, the word ‘‘weekday’’
includes Saturdays, the plaintiff relies on the memoran-
dum of decision that the trial court issued in Vaill I
before rendering judgment, in which the court noted
that ‘‘residents of Lime Rock often invite visitors and
friends to spend the weekend there and to enjoy the
peaceful surroundings of the beautiful countryside,’’
and that ‘‘operation of the [racetrack] on Sundays
proves to be especially annoying and irritating to the
plaintiffs.’’ The court concluded that ‘‘the noise does
not have the same effect on other days, and the track
could be operated on every other day of the week
. . . .’’ The plaintiff contends that this language shows
that, as used in the Vaill I memorandum of decision,
the word ‘‘weekend’’ meant Sunday, thereby implying
that all other days were weekdays. The plaintiff also
points out that both § 221.1 (a) (4) of the 2015 amend-
ments and the stipulation in Vaill IV contain provisions
prohibiting ‘‘the revving or testing of mufflered . . .
car engines on Saturdays . . . prior to [9 a.m.] and
after [6 p.m.],’’ strongly suggesting that the use of such
engines was permitted during the remainder of the day.
The commission acknowledges that the 2015 amend-
ments were intended to codify the terms of the 1988
stipulated judgment in Vaill IV and concedes that the
plaintiff and its predecessor in interest have, pursuant
to their understanding of the terms of that judgment,
conducted mufflered racing activities on the property
on Saturdays for decades, without complaint by the
Vaill plaintiffs or other affected landowners.34 Accord-
ingly, the commission concedes that, as used in § 221-
1 (a) (2) (A) of the 2015 amendments, the word ‘‘week-
day’’ includes Saturdays.
The council contends that, to the contrary, under
ordinary modern usage, the word ‘‘weekday’’ means
any day that does not occur on the ‘‘weekend,’’ which
means Saturday and Sunday. The council also points
out that the 2015 amendments distinguish weekdays
from Saturdays in some respects.
We are persuaded by the plaintiff’s arguments, as
well as the commission’s concession, that the word
‘‘weekday,’’ as used in § 221.1 (a) (2) (A) of the 2015
amendments, was intended to include Saturdays. The
council’s reliance on the fact that there are some differ-
ences between the restrictions imposed on racing activi-
ties from Monday through Friday and those imposed
on Saturday racing is misplaced because there is no
reason that the commission could not impose distinct
regulations on Saturday racing even if Saturday is a
weekday. Accordingly, we conclude that the trial court
incorrectly determined that mufflered racing is prohib-
ited on Saturdays under the 2015 amendments to the
zoning regulations.35
IV
We next address the plaintiff’s claim that the trial
court incorrectly determined that § 221.1 (a) (3) of the
2015 amendments restricting unmufflered racing activi-
ties is not a noise control ordinance within the meaning
of § 22a-73 (b), which, to be effective, would require
the approval of the Commissioner of Energy and Envi-
ronmental Protection (commissioner) pursuant to
§ 22a-73 (c).36 The plaintiff contends that § 221.1 (a)
(3) is a noise control ordinance subject to § 22a-73 (c)
because it differentiates the treatment of unmufflered
racing activities, which are loud, from mufflered activi-
ties, which are less loud. We disagree.
Whether the restrictions on unmufflered racing activi-
ties constitute a noise control ordinance for purposes
of § 22a-73 is a question of statutory interpretation, over
which our review is plenary. See, e.g., State v. Moreno-
Hernandez, supra, 317 Conn. 299. The principles gov-
erning our interpretation of statutes are set forth in part
II of this opinion. Because none of the parties contends
that § 22a-73 is plain and unambiguous as to what con-
stitutes a noise regulation subject to § 22a-73, we may
‘‘look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and [common-
law] principles governing the same general subject mat-
ter . . . .’’ (Internal quotation marks omitted.) Id.
Section 22a-73 is part of the Noise Pollution Control
Act (act), General Statutes § 22a-67 et seq. The legisla-
tive policy that the act was designed to implement is
set forth in § 22a-67.37 That statute expressly recognizes
that land uses that create excessive noise constitute a
potential nuisance and that it is the policy of the state
to promote an environment that is ‘‘free from noise that
jeopardizes the health and welfare of [Connecticut’s]
citizens . . . .’’ General Statutes § 22a-67 (b). Pursuant
to that policy, the commissioner is authorized to ‘‘adopt
. . . a comprehensive state-wide program of noise reg-
ulation . . . .’’ General Statutes § 22a-69 (a).
Pursuant to § 22a-73 (a), ‘‘it is the public policy of
the state to encourage municipal participation by means
of regulation of activities causing noise pollution
. . . .’’ To that end, ‘‘[a]ny municipality may adopt . . .
a noise control ordinance which may include the follow-
ing: (1) Noise levels which will not be exceeded in
specified zones or other designated areas; (2) designa-
tion of a noise control officer and the designation of
an existing board or commission, or the establishment
of a new board or commission to direct such program;
(3) implementation procedures of such program and
the relation of such program to other plans within the
jurisdiction of the municipality; (4) procedures for
assuring compliance with state and federal noise regula-
tions; [and] (5) noise level restrictions applicable to
construction activities, including limitation on on-site
hours of operation.’’ General Statutes § 22a-73 (b).
With these provisions in mind, we preliminarily
observe that we see no evidence, and the plaintiff makes
no claim, that the act was intended to deprive munici-
palities, acting through their zoning commissions, of
their undisputed authority to consider noise as a factor
when they regulate the uses that may be permitted on
specific properties. It is well established that ‘‘[t]he
central concern of zoning is the interaction of land uses,
and an attempt to order those uses to minimize their
adverse impacts on each other. The idea is to prevent
nuisances before they occur . . . .’’ T. Tondro, Con-
necticut Land Use Regulation (2d Ed. 1992) p. 35. This
court has repeatedly recognized that excessive noise is
a type of nuisance that can be regulated pursuant to
the zoning authority conferred on municipalities by § 8-
2. See Cambodian Buddhist Society of Connecticut,
Inc. v. Planning & Zoning Commission, 285 Conn. 381,
440, 941 A.2d 868 (2008) (planning and zoning commis-
sion’s denial of special exception to build Buddhist
temple was supported by substantial evidence when
‘‘the commission reasonably could have concluded that
a parking lot for 148 cars would be a significant source
of noise and disruption in the neighborhood’’); Husti
v. Zuckerman Property Enterprises, Ltd., 199 Conn.
575, 582, 508 A.2d 735 (‘‘[P]erformances at an outdoor
amphitheater located in a residential area threatened
the quality of life and the safety of the inhabitants of
the neighborhood by causing noise, attracting crowds,
and creating traffic congestion. These are precisely the
kinds of dangers that zoning is meant to combat; see
General Statutes § 8-2; and that justify content-neutral
regulation of the time, place, and manner of expres-
sion.’’ (Footnote omitted.)), appeal dismissed, 479 U.S.
802, 107 S. Ct. 43, 93 L. Ed. 2d 6 (1986). Indeed, the
plaintiff concedes that the act does not prevent zoning
commissions from considering noise ‘‘as a factor in
deciding whether a proposed new use [is] appropriate
for a particular location’’ pursuant to the zoning author-
ity conferred by § 8-2.
The plaintiff contends, however, that, once a particu-
lar use of a property has been permitted, zoning com-
missions cannot continue to regulate the noise level that
is produced by the use without obtaining the approval
of the commissioner pursuant to § 22a-73 (c). In support
of this claim, the plaintiff relies on Berlin Batting
Cages, Inc. v. Planning & Zoning Commission, supra,
76 Conn. App. 199. In that case, the defendant planning
and zoning commission of the town of Berlin appealed
from the judgment of the trial court sustaining the plain-
tiff’s appeal from the defendant’s denial of an applica-
tion seeking site plan approval to construct a go-cart
track on its property. Id., 200. The defendant claimed,
among other things, that the trial court improperly had
concluded that § X (D) (3) of the Berlin Zoning Regula-
tions38 was ineffective because it conflicted with the
act. Id., 215–16. The defendant contended that § X (D)
(3) was not a noise control ordinance for purposes of
the act because it ‘‘applie[d] only to site plan review
while an ordinance adopted pursuant to [the act] would
regulate noise emissions in all situations and not merely
when a site plan is under review.’’ (Internal quotation
marks omitted.) Id., 218.
The Appellate Court in Berlin Batting Cages, Inc.,
disagreed. The court concluded that, by adopting the
act, ‘‘the legislature has undertaken to preempt that
field of legislation [i.e., noise pollution control] and to
require that local efforts aimed at noise pollution con-
trol comply with the requirements [that] it has enumer-
ated by statute.’’ Id., 217. The court further concluded
that § 8-2 did not ‘‘confer authority [to] the zoning com-
mission to promulgate regulations concerning noise
pollution and, moreover, we certainly do not read that
language to contradict the [act].’’ Id., 218. Because the
defendant had not complied with the requirement of
§ 22a-73 (c) that noise control ordinances be approved
by the commissioner, the Appellate Court concluded
that the zoning regulation was ineffective. Id., 217–19.
Accordingly, the Appellate Court upheld the trial court’s
ruling that § X (d) (3) could not provide a basis for
denying the site plan. Id., 219.
The plaintiff in the present case contends that Berlin
Batting Cages, Inc., supports its position for two rea-
sons. First, it claims that, although the defendant in
that case would have had the authority under § 8-2 to
consider noise as a factor in deciding whether to allow
the use sought by the plaintiff,39 the decision establishes
that zoning commissions cannot regulate noise after a
use had been approved without obtaining the approval
of the commissioner. Thus, the plaintiff appears to con-
tend that, once the commission permitted racing activi-
ties on the property in the present case, any further
attempt to regulate the noise level of those activities
would constitute a noise control ordinance for purposes
of the act. Second, the plaintiff contends that, under
Berlin Batting Cages, Inc. v. Planning & Zoning Com-
mission, supra, 76 Conn. App. 199, zoning commissions
that want to regulate noise must adopt a ‘‘comprehen-
sive program of noise regulation’’; (emphasis added;
internal quotation marks omitted) id., 216; and they
cannot adopt noise control ordinances that target spe-
cific properties.
The flaw in the plaintiff’s first argument is that, even
if the plaintiff were correct that the commission cannot
regulate the noise level of a land use that it has permit-
ted without obtaining the approval of the commissioner,
the plaintiff incorrectly assumes that the use that the
2015 amendments permit is ‘‘racing activities.’’ In fact,
the amendments contemplate two distinct uses of the
property—mufflered racing activities and unmufflered
racing activities—with two different noise levels. We
can perceive no reason why, if the commission has the
authority under § 8-2 to consider noise as a factor when
determining whether a particular land use is appro-
priate—which the plaintiff concedes—it would not have
the authority to allow mufflered racing while prohib-
iting or placing greater restrictions on unmufflered rac-
ing on the basis of their different noise levels. It would
make little sense, for example, to conclude that, if a
zoning commission were to permit racing activities by
noiseless electric vehicles as an appropriate use of a
property under the authority conferred by § 8-2, it could
not thereafter prohibit or restrict unmufflered monster
truck racing on the property without running afoul of
the act, even though the act would not have affected
the commission’s authority to prohibit unmufflered rac-
ing as a ‘‘new use’’ if it had not previously allowed
electric vehicle racing. We conclude, therefore, that a
zoning regulation that differentiates between distinct
land uses that produce different noise levels for pur-
poses of determining whether a specific use is appro-
priate for a property does not, ipso facto, specify
‘‘[n]oise levels which will not be exceeded in specified
zones or other designated areas’’; (emphasis added)
General Statutes § 22a-73 (b) (1); and, therefore, does
not constitute a municipal noise control ordinance for
purposes of the act.
This conclusion disposes of the plaintiff’s second
argument.40 Even if we were to assume that a town that
wishes to establish a noise control program pursuant
to the act must adopt a comprehensive program, we
have concluded that the 2015 amendments did not con-
stitute a noise control ordinance within the meaning of
the act. We conclude, therefore, that the trial court
correctly determined that the commission was not
required to obtain the commissioner’s approval of
§ 221.1 (a) (3) of the 2015 amendments, pursuant to
§ 22a-73 (c), before the regulation could be effective.41
V
Finally, we address the plaintiff’s contention that the
trial court incorrectly determined that the commission
had the authority under §§ 8-2 and 8-3 (c)42 to adopt
§§ 221.1 (a) (8) and 221.3 (d) of the 2015 amendments
(special permit provisions), which provide that the
respective subsections of the amendments ‘‘may be
amended by the [c]ommission upon filing and approval
of . . . a special permit application in compliance with
all requirements of these regulations . . . .’’ We agree
with the plaintiff.
The following additional procedural history is rele-
vant to our consideration of this claim. In support of
its determination that the commission had the authority
to adopt the special permit provisions, the trial court
relied on the Appellate Court’s decision in Taylor v.
Zoning Board of Appeals, 65 Conn. App. 687, 783 A.2d
526 (2001). In that case, the plaintiffs operated a non-
conforming sand and gravel quarry on their property.
Id., 690. The plaintiffs and their predecessors in title
had operated the quarry for several decades, but, in
1990, the town of Wallingford amended its zoning regu-
lation to allow quarry operations if the owner obtained
a special permit. Id. The plaintiffs obtained a permit and
renewed it twice but ultimately let the permit expire.
Id. Thereafter, the town’s zoning enforcement officer
issued a cease and desist order to the plaintiffs. Id.,
690–91. The plaintiffs appealed from the order to the
zoning board of appeals (board), claiming that, because
their quarry operation was a preexisting nonconforming
use, they were not required to obtain a special permit.
Id., 691. The board denied the appeal on the ground
that the plaintiffs had waived their right to continue to
use their property as a nonconforming use when they
applied for a special permit. Id.
The plaintiffs then appealed to the trial court. Id. The
trial court dismissed the appeal on the ground that the
town’s zoning regulations permitted the conversion of
a nonconforming use into a permitted use. Id. The court
further concluded that, even if the plaintiffs’ use contin-
ued to be nonconforming, the town had the authority
to regulate the use in the interest of public health, safety
and welfare. Id., 691–92.
The plaintiffs appealed from the judgment of dis-
missal to the Appellate Court, which concluded that
the trial court had incorrectly determined that the town
had the authority to convert the plaintiffs’ nonconform-
ing use into a permitted use because, ‘‘[o]nce a noncon-
forming use is established, the only way it can be lost
is through abandonment.’’ Id., 695. The Appellate Court
also concluded, however, that the town had the author-
ity to regulate the nonconforming use to protect the
public health, safety and welfare, ‘‘provided it is done
reasonably’’; (emphasis omitted; internal quotation
marks omitted) id., 697; and that the special permit
requirement was a reasonable regulation. Id., 698.
Accordingly, the Appellate Court affirmed the judgment
of the trial court. Id.
In the present case, the trial court found that ‘‘the
regulation of racing, camping and parking at the track
[had] been ambiguous, jumbled, sloppy and confusing
prior to the 2015 . . . amendments.’’ In addition, the
court found that, ‘‘even though [racing activities have]
been a specially permitted use since 1975, the [plaintiff]
has never applied for or received a special permit.’’
The court concluded that, consistent with Taylor, ‘‘[i]t
would provide a necessary benefit to the public to have
a site plan of the [property] on file in the zoning office,
detailing important aspects of its operation like sanita-
tion and parking.’’ The trial court further concluded
that, under this court’s decision in Zimnoch v. Plan-
ning & Zoning Commission, 302 Conn. 535, 29 A.2d
898 (2011), the commission was not precluded by § 8-
3 (c) from ‘‘combining a zone change application with
a special permit application.’’ See id., 552 (‘‘although
the considerations and actions taken by the commission
in reviewing the zone change application are slightly
different in operation when compared to the special
exception permit application, we have uncovered no
requirement, statutory, regulatory or otherwise, that
precludes the town from combining these applications
into one process’’ (footnote omitted)). Accordingly, the
trial court concluded that, under Taylor, the special
permit provisions were a reasonable regulation of the
plaintiff’s nonconforming use.
The plaintiff now contends that, regardless of
whether the commission could order the plaintiff to
discontinue its racing activities until it obtained a spe-
cial permit, as was done in Taylor,43 the trial court’s
reliance on Zimnoch v. Planning & Zoning Commis-
sion, supra, 302 Conn. 535, to support its conclusion
that the commission had the authority to require it to
apply for a special permit as a condition for seeking
an amendment to the zoning regulations was misplaced
because that case is distinguishable from the present
case. The plaintiff also contends that the special permit
provisions are arbitrary and unreasonable because they
effectively bar any person except the plaintiff from
seeking an amendment. The council and the commis-
sion dispute these claims. The commissioner also con-
tends that the plaintiff lacks standing to raise them
because the special permit provisions do not bar it from
filing a petition to amend the regulations.
‘‘It is, of course, fundamental that no zoning regula-
tions are valid unless they are within the police power.
They must bear a reasonable relation to the public wel-
fare and that relation must be within at least one of the
particulars specified in the enabling statute. . . . It
must be borne in mind that the courts will not substitute
their judgment for that of the legislative body if the
question whether a zoning ordinance is consistent with
the public welfare in any of the particulars specified in
the statute is fairly debatable. . . . A zoning ordinance
will be held invalid only if it is palpably unjust, unrea-
sonable or arbitrary.’’ (Citations omitted.) Fairlawns
Cemetery Assn., Inc. v. Zoning Commission, supra,
138 Conn. 440; see also Schwartz v. Town Planning &
Zoning Commission, 168 Conn. 285, 294, 362 A.2d 1378
(1975) (zoning regulations were valid when plaintiffs
presented no evidence that they were ‘‘unreasonable,
arbitrary or confiscatory’’). The validity of a zoning reg-
ulation is a question of law over which our review is
plenary. See, e.g., Jackson, Inc. v. Planning & Zoning
Commission, 118 Conn. App. 202, 206, 982 A.2d 1099
(2009), cert. denied, 294 Conn. 931, 986 A.2d 1056
(2010).
Because it implicates the trial court’s subject matter
jurisdiction, we first address the commission’s claim
that the plaintiff lacks standing to challenge the special
permit provisions on the ground that they bar other
persons from seeking to amend the regulations. In sup-
port of this claim, the commission cites Lauer v. Zoning
Commission, 220 Conn. 455, 465, 600 A.2d 310 (1991).
In Lauer, the defendant, John Angeloni, applied for and
obtained a special permit to operate a horse riding
academy on his property. Id., 456–58. The plaintiff, who
owned land within 100 feet of Angeloni’s property; id.,
458 n.6; claimed that the failure of the zoning commis-
sion to give notice of the special permit proceedings
to an adjoining town, as required by General Statutes
(Rev. to 1989) § 8-3h, deprived the commission of sub-
ject matter jurisdiction over the special permit applica-
tion. Id., 459. This court concluded that the failure to
give notice pursuant to § 8-3h did not implicate the
commission’s subject matter jurisdiction but merely
provided for ‘‘personal notice.’’ Id., 464–65. This court
further concluded that the plaintiff had no standing to
raise the claim on appeal that the commission had failed
to give personal notice to the adjoining town. Id., 465.
 We conclude that Lauer is distinguishable from the
present case. Unlike the plaintiff in Lauer, who was in
no way affected by the zoning commission’s failure to
notify an adjoining town of the special permit proceed-
ings, the plaintiff in the present case is adversely
affected by the requirement that it obtain a special
permit before it may seek an amendment to the zoning
regulations.44 We conclude, therefore, that the plaintiff
has standing to raise the claim that the special permit
provisions are arbitrary because they restrict the per-
sons who can seek an amendment to the zoning regula-
tions. A conclusion to the contrary would mean that
the plaintiff would be burdened by a facially invalid
regulation. In this regard, we note that this court in
Lauer implicitly recognized that, if § 8-3h had been sub-
ject matter jurisdictional, the plaintiff would have had
standing to raise the claim that the commission had
failed to comply with it. See id.
We now turn to the merits of the plaintiff’s claim that
the trial court’s reliance on Zimnoch was misplaced
and that the special permit provisions are arbitrary. We
agree with the plaintiff. In Zimnoch, the defendant,
Pond View, LLC (Pond View), owned land in the town
of Monroe, part of which fell within a DB-2 business
and commercial zone and part of which fell within a
residential zone. Zimnoch v. Planning & Zoning Com-
mission, supra, 302 Conn. 537, 539. Pursuant to town
zoning regulations that required a landowner that
wanted to change the zone in which its land was located
to a design district to file simultaneously a petition to
establish the design district and an application for a
special exception permit, Pond View filed a combined
application for a design district zone change and a spe-
cial exception permit. See id., 539.45 The application
was denied, and a series of appeals followed; id., 540–56;
the substance of which has no bearing on the present
case. In the course of explaining the applicable regula-
tory scheme, this court stated in Zimnoch that it had
‘‘uncovered no requirement, statutory, regulatory or
otherwise, that precludes the town [of Monroe] from
combining these applications [for a zone change and
for a special permit] into one process.’’ Id., 552. Indeed,
we noted that ‘‘combining zone and permit applications
helps expedite the process and ensures that a commis-
sion makes the most informed decision possible.’’ Id.,
553.
In the present case, the trial court appears to have
concluded that Zimnoch stands for the general proposi-
tion that a petition to amend zoning regulations may
be conditioned on the simultaneous filing of a special
permit application. In Zimnoch, however, the regula-
tion that governed petitions to change the zone in which
a particular property was located to a design district
was specifically directed to the owners of the property.
See id., 549 n.11 (quoting Monroe Zoning Regs., § 117-
900, providing that ‘‘ ‘[t]he owner or owners of a tract
of land may petition for the establishment of a design
district’ ’’). Presumably, this was because only the own-
ers would have standing to seek to designate their prop-
erty as a design district. Any person who would be
affected by the proposed change, however, would be
able to protect his or her interests by participating in
the public hearings on the petition. See id., 549 n.12
(citing Monroe Zoning Regs., § 117-905 (A)); see also
footnote 45 of this opinion. In contrast, in the present
case, many persons other than the plaintiff have inter-
ests that are affected by the racing activities on the
plaintiff’s property and the 2015 amendments, whose
interests could be protected by filing a petition to amend
the regulations. For example, neighboring landowners
might want to seek an amendment changing or reducing
the number of hours that racing activities are permitted.
Under the special permit provisions, they have no ability
to do so. The council and the commission—which con-
cede this point—have cited no authority for the proposi-
tion that the commission is empowered to arbitrarily
restrict the classes of affected persons who can seek
to amend particular zoning regulations.46 We conclude,
therefore, that the special permit provisions are
invalid.47
We further note that, to the extent that the commis-
sion adopted the special permit provisions in order to
force the plaintiff to file an application for a special
permit before it could expand racing activities on the
property, the provisions would appear to be unneces-
sary. The sole justification for the plaintiff’s position
that it is not required to apply for a special permit to
continue its present activities on the property is that
those activities predated the adoption of the regulation
requiring a special permit to conduct racing activities
in 1975. Thus, the plaintiff contends that, contrary to
the holding of the Appellate Court in Taylor v. Zoning
Board of Appeals, supra, 65 Conn. App. 687, conducting
the current level of racing activities without the need
to obtain a special permit is, in effect, a preexisting
nonconforming use that the commission cannot abro-
gate by regulation.48 The plaintiff makes no claim, how-
ever, that it could expand its racing activities on the
property without first seeking an amendment to the
zoning regulations and obtaining the required special
permit.49 Cf. R. Fuller, 9B Connecticut Practice Series:
Land Use Law and Practice (4th Ed. 2015) § 52:2, p. 226
(‘‘[t]he zoning regulations . . . may allow [for] expan-
sion of a nonconforming use by special permit’’ (foot-
note omitted)).
VI
In summary, we conclude that the trial court correctly
determined that (1) the plaintiff did not waive its right to
challenge the 2015 amendments’ prohibition on Sunday
racing, and (2) the 2015 amendments’ restrictions on
unmufflered racing are not subject to the provisions
of § 22a-73. We further conclude that the trial court
incorrectly determined that (1) § 14-164a (a) preempted
the regulation prohibiting racing activities on the plain-
tiff’s property on Sundays, (2) the 2015 amendments
prohibit mufflered racing activities on Saturdays, and
(3) the commission acted within its authority when it
adopted the regulations requiring the plaintiff to obtain
a special permit as a condition for filing a petition to
amend the 2015 amendments.
The judgment is reversed insofar as the trial court
determined that § 14-164a (a) preempted the regulation
prohibiting racing activities on Sundays and the case is
remanded with direction to render judgment dismissing
the plaintiff’s appeal with respect to that claim; the
judgment is reversed insofar as the trial court ruled
that the 2015 amendments prohibited mufflered racing
activities on Saturdays and the case is remanded with
direction to vacate that ruling; the judgment is reversed
insofar as the trial court determined that the commis-
sion had the authority to adopt the regulations requiring
the plaintiff to obtain a special permit as a condition
for filing a petition to amend the 2015 amendments and
the case is remanded with direction to render judgment
sustaining the plaintiff’s appeal with respect to that
claim; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
* May 22, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Upon the granting of certification pursuant to General Statutes § 8-8 (o),
the parties appealed to the Appellate Court, and we transferred the appeals
to this court pursuant to General Statutes § 51-199 (c) and Practice Book
§ 65-1.
2
General Statutes § 14-164a (a) provides in relevant part: ‘‘No person shall
operate a motor vehicle in any race, contest or demonstration of speed or
skill with a motor vehicle as a public exhibition except in accordance with
the provisions of this section. Such race or exhibition may be conducted
at any reasonable hour of any week day or after twelve o’clock noon on
any Sunday. The legislative body of the city, borough or town in which the
race or exhibition will be held may issue a permit allowing a start time prior
to twelve o’clock noon on any Sunday, provided no such race or exhibition
shall take place contrary to the provisions of any city, borough or town
ordinances. . . .’’
3
The trial court noted that the parties were unable to provide any docu-
mentation regarding the adoption of this regulation. On the basis of a copy
of the 1974 revision of the zoning regulations that contained handwritten
references to the third through sixth revisions of the Salisbury zoning regula-
tions, as well as a handwritten notation containing the text of the amendment
referring to the judgment in Vaill I, the court found that the amendment
had been adopted at some point between the adoption of the second and
sixth revisions.
4
Neither the parties nor the trial court has explained how the court arrived
at its conclusion that this amendment was adopted in 1975. The conclusion
is undisputed, however.
5
At the time of the 1988 modification, the Lime Rock Protection Commit-
tee, Inc., had been substituted as the plaintiff in the Vaill case and the then
owner of the property, Lime Rock Associates, Inc., had been substituted as
the defendant.
6
On September 4, 2015, the plaintiff in the present case, which is a defen-
dant in the Vaill case, again sought to modify the injunction in Vaill. Specifi-
cally, in its motion, the plaintiff sought to modify the present terms of the
injunction by, among other things, (1) allowing it to conduct unmufflered
racing activities on one Sunday per year after 12 p.m., (2) allowing mufflered
racing activities on twenty Sundays per year; (3) allowing a start time of 9
a.m. for mufflered racing activities in the ‘‘[u]pper [a]rea’’ of the property
on Sundays and after 12 p.m. on the racetrack, (3) changing the racing start
time on Fridays from 10 a.m. to 9 a.m. and changing the finish time on
Saturdays from 6 p.m. to 7 p.m., (4) allowing unmufflered racing activities
on Fridays, and (5) reducing the number of Tuesdays that the plaintiff can
conduct unmufflered racing activities from fifty-two per year to twenty per
year, and allowing the plaintiff to conduct unmufflered racing activities on
five Thursdays per year instead of on Tuesdays. The proceedings on the
plaintiff’s motion for modification have been stayed pending resolution of
these appeals.
7
The 2015 amendments to the regulations provide: ‘‘221.1 Track for Racing
Motor Vehicles
‘‘A track for racing motor vehicles, excluding motorcycles, as well as for
automotive education and research in safety and for performance testing
of a scientific nature, private auto and motorcycle club events, car shows,
and certain other events identified in section 221.2 are permitted subject
to the issuance of a special permit in compliance with the procedures and
standards of these regulations and also subject to the following:
‘‘a. No motor vehicle races shall be conducted on any such track except
in accordance with the following parameters:
‘‘(1) All activity of mufflered or unmufflered racing cars upon the asphalt
track or in the paddock areas shall be prohibited on Sundays.
‘‘(2) Activity with mufflered racing car engines shall be permitted as
follows:
‘‘A. On any weekday between [9 a.m.] and [10 p.m.] provided, however, that
such activity may continue beyond the hour of [10 p.m.] without limitation
on not more than six . . . occasions during any one calendar year.
‘‘B. Permissible mufflers are those which meet the standards set forth in
Section 14-80 (c) of the General Statutes of Connecticut, Revision of 1959,
or as the same may be amended from time to time.
‘‘(3) Activity with unmufflered racing car engines shall be permitted as
follows:
‘‘A. On Tuesday afternoon of each week between [12 p.m.] and [6 p.m.].
‘‘B. On Saturdays, not more than ten . . . in number in each calendar
year, between the hours of [9 a.m.] and [6 p.m.].
‘‘C. On the ten . . . Fridays which precede the said ten . . . Saturdays
between the hours of [10 a.m.] and [6 p.m.] for the purpose of testing,
qualifying or performing such other activities as may be necessary or inciden-
tal to the direct preparation for races on the Saturdays specified, provided
that no qualifying heats or races shall be permitted on such Fridays.
‘‘D. In such event the scheduled activity for any of the said ten . . .
Saturdays must be rescheduled for a ‘rain date,’ then the said ‘rain date’
and the Friday preceding it shall not be considered as one of the ten . . .
days referred to in [p]aragraphs (b) and (c) above.
‘‘E. On Memorial Day, Fourth of July and Labor Day between the hours
of [9 a.m.] and [6 p.m.].
‘‘(i) In the event any of said holidays falls on a Tuesday, Thursday or a
Friday, there may be unmufflered activity on the day preceding the holiday
between the hours of [12 p.m.] and [6 p.m.], but in the event the permissible
unmufflered activity of the Tuesday next preceding the holiday shall be for-
feited.
‘‘(ii) In the event any of said holidays falls on a Sunday, the next day
(Monday) will be considered the holiday for these purposes.
‘‘(iii) In no event shall any such holidays increase the number of Saturdays
of permissible unmufflered activity beyond ten . . . as provided in [p]ara-
graph (b) above.
‘‘(4) Prohibited activity upon the track property shall include the revving or
testing of mufflered or unmufflered car engines on Saturdays and permitted
holidays prior to [9 a.m.] and after [6 p.m.], excepting the transportation of
said vehicles to and from the paddock areas on or off their respective
trailers, which transporting, unloading or loading shall not commence before
7:30 a.m. or extend beyond 7:30 p.m.
‘‘(5) The use of the track loudspeakers before [8 a.m.] and after [7 p.m.]
is prohibited.
‘‘(6) A ‘racing car,’ for purposes of this subsection, is defined as any car
entered in an event on an asphalt track.
‘‘(7) Racing of motorcycles is prohibited. Nevertheless, specifically permit-
ted are nonracing motorcycle activities including but not limited to demon-
strations, instruction, timing, testing, practice and photography.
‘‘(8) The parameters set forth in this subsection may be amended by the
[c]ommission upon filing and approval of (1) a special permit application
in compliance with all requirements of these regulations, including a site
plan identifying the location of all uses, accessory uses, buildings, structures,
pavement, and all other improvements on the relevant property, and amend-
ments to any of the parameters set forth above; and (2) a petition to amend
the zoning regulations setting forth alternative parameters for this sub-
section.
‘‘b. Where the land on which a race track is situated abuts or faces a
residential zone district, there shall be a minimum of fifty foot buffer strips
along each yard, or part thereof, so abutting or facing, which shall contain
a screen of shrubbery not less than fifteen feet in width nor less than six
feet in height within one year of the adoption of this amendment to the
regulations. This screen shall thereafter be suitably and neatly maintained
by the owner, tenant and/or their agent. Any such screen shall consist of
at least fifty percent evergreens so as to maintain a dense screen at all
seasons of the year.
‘‘c. The lot shall have adequate frontage on or access to a principal traffic
street or street capable of handling the volume of traffic to be generated
thereon. The access and service roads connecting with the principal traffic
street or streets shall be so located and designed as to avoid unsafe traffic
conditions or congestion. Traffic control devices and lighting of access
points at or across street or access intersections shall be provided at the
expense of the owner when required and provision shall be made for safe
pedestrian traffic to, from and within the lot. The design and location of
access and intersections with public highways shall be subject to the
approval of the [s]electmen for a town road or the Connecticut Department
of Transportation for a state highway.
‘‘d. Adequate off-street parking shall be provided to accommodate the
vehicles of employees, proprietors, participants, customers, visitors and
others.
‘‘e. Not more than three signs, not more that [fifty] square feet each,
advertising the use of the premises shall be permitted. Any sign not consis-
tently visible from off the premises is permitted. Directional signs, not more
than six square feet each, are permitted.
‘‘f. No sign, with the exception of scoreboards, visible off the premises
shall be illuminated by exposed tubes or other exposed light sources, nor
shall any flashing sign be visible from off the premises. Spot or other lighting
of any sign, building, structure, land track, parking space or any other part
of the premises shall be so arranged that the light source is not visible from
any point off the premises.
‘‘221.2 Accessory [u]ses to a track for racing motor vehicles may include:
retail stores, professional or business offices, fire or emergency services,
ATMs, restaurants, and food stands. Accessory uses may also include the
use of the premises for automobile shows, sale of motor vehicles during
racing events, sale of automotive parts and accessories; car washes, auto
service and repairs; filling stations; commercial parking; laundry; equipment
storage; racing schools and clubs; indoor theaters; and other similar activities
that are accessory to the operation of a recreational race track herein
permitted. Other accessory uses may include the production, showing, or
performance of television, motion picture or radio programs with their
related lighting and sound equipment.
‘‘221.3 Camping by spectators and participants is allowed as an accessory
use to permissible automobile racing events subject to the following
restrictions:
‘‘a. All camping and camping vehicles shall be limited to locations within
the infield of any asphalt race track existing as of the effective date of
this regulation.
‘‘b. No motor vehicles shall be parked in any [r]ace [t]rack outfield during
the hours of [10 p.m.] to [6 a.m.] except those which are (1) on official track
business; and (2) parked in the parking lot existing as of the effective date
of this regulation.
‘‘c. No traffic other than emergency or service vehicles shall be allowed
between the hours of [11 p.m.] and [6 a.m.] on any accessway into any race
track that abuts property located at 52 White Hollow Road.
‘‘d. The standards set forth in this subsection may be amended by the
[c]ommission upon filing and approval of (1) a special permit application
in compliance with all requirements of these regulations, including a site
plan identifying the location of all uses, accessory uses, buildings, structures,
pavement, and all other improvements on the relevant property, and amend-
ments to any of the restrictions set forth above; and (2) a petition to amend
the zoning regulations setting forth alternative standards for this subsection.
‘‘221.4 The following uses are deemed not to be accessory uses to a
track for racing motor vehicles but are allowed subject to a special permit:
Fireworks displays (with the exception of a single evening display during
the annual Independence Day period in early July for charitable purposes),
concerts, flea markets, craft fairs, food shows, non-automotive trade shows,
and garden shows.
‘‘221.5 If the holder of a special permit for a track for motor vehicle racing
leases or otherwise authorizes a private organization to use all or part of
its property to a third party, it shall require said party to comply with all
provisions of these regulations, the special permit, and its conditions.
‘‘221.6 If any portion of this section . . . shall be found by a court of
competent jurisdiction to be illegal, it is the intent of this [c]ommission no
part of [this] [s]ection . . . shall remain valid, including the amended table
of uses adopted simultaneously herewith providing that a track for racing
of motor vehicles shall be allowed by special permit in the [rural enterprise]
[d]istrict; it being the intent of the [c]ommission that, if it is found that the
[c]ommission lacks authority to regulate any aspect of [r]ace [t]rack use as
set forth herein, then a track for [r]acing of [m]otor [v]ehicles shall be found
to not be permitted in the [rural enterprise] [d]istrict, and any race track
use in existence at the time of the adoption of these regulations shall have
such rights as may exist as a nonconforming use under these regulations
and Connecticut law.’’ (Footnote omitted.) Salisbury Zoning Regs. (2015)
§§ 221.1 through 221.6.
We note that paragraph (a) of § 221.1 includes the following footnote:
‘‘The parameters set forth [in paragraph (a)] are identical to those set forth
in [the amended judgment in Vaill IV], which parameters were previously
incorporated by reference in the zoning regulations.’’ Salisbury Zoning Regs.
(2015) § 221.1 (a) n.1.
Section 221.6 of the 2015 amendments was repealed on April 6, 2016.
8
General Statutes § 8-2 (a) provides in relevant part: ‘‘The zoning commis-
sion of each city, town or borough is authorized to regulate, within the
limits of such municipality . . . the location and use of buildings, structures
and land for trade, industry, residence or other purposes . . . .’’
9
The trial court issued its first memorandum of decision on January 31,
2018, sustaining the appeal in part and denying it in part, and it rendered
judgment accordingly. Thereafter, all three parties filed motions to reargue.
The trial court granted the motions to reargue, opened the judgment and
issued an amended memorandum of decision on July 17, 2018, which super-
seded the original memorandum of decision in all respects.
10
The parties did not address in the proceedings before the trial court
the issue of whether the word ‘‘weekday,’’ as used in the amendments,
includes Saturdays. The commission and the plaintiff appear to have
assumed that ‘‘weekday’’ includes Saturdays, whereas the council appears
to have assumed that it does not. The trial court reached its conclusion
that mufflered racing is not allowed on Saturdays in the portion of its
memorandum of decision summarizing the contents of the amendments.
11
As we have explained, the plaintiff did not raise this claim in the proceed-
ings before the trial court but appears to have assumed, sub silentio, that
the word ‘‘weekday,’’ as used in the 2015 amendments, includes Saturdays,
whereas the council appears to have made the contrary assumption. See
footnote 10 of this opinion. Because the record is adequate for review, the
parties have briefed the issue, and neither the commission nor the council
objects to our review, we review the claim.
12
After the plaintiff, which is a defendant in the Vaill case, filed a motion
to modify the judgment in Vaill, the council filed a motion to intervene in
that case, which the trial court granted. The commission states in its brief
to this court that, ‘‘because the council’s waiver argument relies on specific
pleadings and stipulations in a matter [in which] the commission is not a
party,’’ it took no position on this claim in the trial court and takes no
position on the council’s claim on appeal.
13
We note that the plaintiff makes no claim that the stipulations in Vaill
II and Vaill IV are not binding on it or that, if its predecessor in interest
waived the right to challenge amendments to the zoning regulations that
were consistent with the terms of those stipulations, it would not be bound
by that waiver. It claims only that there was no such waiver.
14
Indeed, we note that, under Connecticut law, a restrictive covenant
running with the land, which is a purely private agreement, may be modified
in light of changed circumstances. See, e.g., Bueno v. Firgeleski, 180 Conn.
App. 384, 396, 183 A.3d 1176 (2018). Accordingly, even if the plaintiff were
correct that the stipulations in Vaill II and Vaill IV effectively constituted
restrictive covenants that run with the land, that would not mean that the
owners of the property would be bound by the terms of the stipulations
forever, regardless of whether a change in circumstances subverted their
purpose.
15
We acknowledge that it is possible that the plaintiff’s actions may have
given rise to reliance interests the trial court could consider when determin-
ing whether the injunction should be modified. That question, however, is
not before the court in the present case, and we express no opinion on it.
We conclude only that the plaintiff is not barred from ever challenging
the terms of the stipulations in any forum merely because it abided by
their terms.
16
The council cites authority for the proposition that, when an appeal
from a zoning decision is available, a party cannot forgo the appeal and
later bring a collateral attack on the decision. See Cavallaro v. Durham,
190 Conn. 746, 748, 462 A.2d 1042 (1983) (‘‘[a]n independent action may not
be used to test the very issue [that] an appeal is designed to test’’). This
begs the question, however, by assuming that an appeal from an amendment
to the zoning regulations that purportedly recodifies a preexisting regulation
in different language constitutes an impermissible collateral attack on the
original regulation, which is the very claim that the council is making in
the first instance.
17
The council does contend that the trial court incorrectly found that the
2015 amendments did not merely recodify the 2013 amendment because
the 2013 amendment restricted only the hours that racing activities were
permitted on the property and did not prohibit racing on Sundays. We agree
with the council and the commission that, by incorporating the order in
Vaill I, as subsequently modified, the 2013 amendment prohibited racing
activities on the property on Sundays because the order, as modified, permit-
ted zero hours of racing activities on Sundays. Thus, the prohibition on
Sunday racing in the 2015 amendments recodified that prohibition.
18
We recognize that, at a September 8, 2015 public hearing on the proposed
amendments, the chairman of the commission, Michael W. Klemens, indi-
cated that he did not believe that the 2013 amendment was intended to
incorporate modifications to the injunction in the Vaill case that occurred
after the date that the amendment was adopted. We emphasize that we
express no opinion as to whether this position was correct. Rather, we
decline to review the council’s claim that the plaintiff forfeited its right
to challenge the 2015 amendment when it failed to appeal from the 2013
amendment because the council has provided no analysis on this issue in
its brief to this court.
19
For its part, the plaintiff contends that the trial court incorrectly deter-
mined that the commission could regulate weekday racing activities in any
manner under § 14-164a (a), except to ensure that the activities occurred at
reasonable hours. Thus, the plaintiff appears to contend that the commission
cannot prohibit racing activities during reasonable hours on weekdays.
Because the plaintiff makes no claim that the 2015 amendments actually
prohibit weekday racing during reasonable hours, this claim is hypothetical,
and we ordinarily would not address it. See, e.g., Esposito v. Specyalski,
268 Conn. 336, 350, 844 A.2d 211 (2004) (‘‘[w]e are not compelled to decide
claims of right which are purely hypothetical or are not of consequence as
guides to the present conduct of the parties’’ (internal quotation marks
omitted)). We note, however, that it necessarily follows from our conclusion
that § 14-164a (a) does not preempt towns from adopting zoning regulations
that are more restrictive of Sunday racing activities than the statute because
the statute is prohibitory in that the statute would not preempt the commis-
sion from prohibiting racing activities during any hours on any day of the
week.
20
As we explain more fully subsequently in this opinion, a prohibitory
statute is a statute that restricts the subjects of the statute from engaging
in certain activities, in contrast to a permissive statute, which confers permis-
sion to engage in certain activities. When a statute is prohibitory, towns
cannot permit activities that the statute prohibits, whereas, if a statute is
permissive, towns cannot prohibit activities that the statute permits.
21
In its primary brief to this court, the commission expounds at length
on its claim that the trial court’s grammatical analysis was incorrect because
the word ‘‘provided’’ can be interpreted as meaning ‘‘and,’’ in which case
the proviso clause would not be a dependent subordinate clause, but an
independent clause. Even if that were the case, however, the structure and
grammar of the statute would still support the conclusion that ‘‘such race,’’
as used in the proviso clause, refers only to the races described in the first
clause of the third sentence, i.e., races before 12 p.m. on Sunday. We also
disagree with the commission’s claim that the references to ‘‘such race’’ in
the first and third sentences of § 14-164 (a) must be interpreted as having
the same meaning, i.e., all races that the statute regulates. It is reasonable
to conclude that the phrase ‘‘such race’’ has the same meaning in the sense
that it refers to the immediately antecedent use of the word ‘‘race.’’
22
The language that was deleted in 1998 is indicated by brackets, and the
language that was added is indicated by italics.
23
Again, the language that was deleted is indicated by brackets, and the
language that was added is indicated by italics.
24
As we explained, before the 1998 amendment, racing activities before
12 p.m. on Sunday were categorically prohibited.
25
The plaintiff concedes that nothing in the legislative history of P.A. 98-
182 indicates that the legislature intended to confer an absolute right to
conduct racing activities during reasonable hours on weekdays and after
noon on Sundays.
26
Notwithstanding its contention that § 14-164a (a) is a ‘‘permissive’’ stat-
ute, the plaintiff does not appear to claim that towns could enact zoning
regulations that would, for example, permit racing activities twenty-four
hours a day, seven days a week. Any such interpretation would ignore the
first sentence of § 14-164a (a), providing that ‘‘[n]o person shall operate a
motor vehicle in any race . . . except in accordance with the provisions
of this section.’’ It would also mean that there was no need for the legislature
to adopt the 1998 amendment to § 14-164a (a) authorizing the issuance of
a permit to conduct racing activities before noon on Sundays subject to the
approval of the municipality.
27
For similar reasons, we reject the plaintiff’s suggestion that towns have
the authority under § 8-2; see footnote 8 of this opinion; to prohibit racing
activities altogether and to prohibit them in certain zones, but, once towns
permit racing activities, they cannot regulate the days and hours on which
the activities occur more strictly than § 14-164a (a). First, this contention
seems to contradict claims made elsewhere by the plaintiff that § 14-164a
(a) grants an absolute right to conduct racing at certain hours on certain
days of the week and that the legislature ‘‘explicitly limit[ed] local control
to Sunday prenoon activities . . . .’’ Second, we cannot perceive why the
legislature would simultaneously conclude that racing activities are so poten-
tially disruptive and dangerous that they may be prohibited altogether but
are so socially valuable that, when they are allowed, they must be allowed
seven days a week during certain hours.
28
Having concluded that § 14-164a (a) is prohibitory for preemption pur-
poses, we need not address the plaintiff’s claim that the trial court incorrectly
determined that ‘‘week day,’’ as used in § 14-164a (a), does not include
Saturdays because, even if the plaintiff were correct, the statute would not
preempt the commission from restricting Saturday racing activities more
strictly than the statute. We address in part III of this opinion the plaintiff’s
claim that the trial court incorrectly concluded that the word ‘‘weekday,’’
as used in the 2015 amendments, does not include Saturdays.
29
General Statutes § 8-13 provides: ‘‘If the regulations made under author-
ity of the provisions of this chapter require a greater width or size of yards,
courts or other open spaces or a lower height of building or a fewer number
of stories or a greater percentage of lot area to be left unoccupied or impose
other and higher standards than are required in any other statute, bylaw,
ordinance or regulation, the provisions of the regulations made under the
provisions of this chapter shall govern. If the provisions of any other statute,
bylaw, ordinance or regulation require a greater width or size of yards,
courts or other open spaces or a lower height of building or a fewer number
of stories or a greater percentage of lot area to be left unoccupied or impose
other and higher standards than are required by the regulations made under
authority of the provisions of this chapter, the provisions of such statute,
bylaw, ordinance or regulation shall govern.’’
30
In Mallory v. West Hartford, supra, 138 Conn. 497, this court construed
a provision of a special act; see 19 Spec. Acts 939, No. 469, § 20 (1925)
(Spec. Act No. 469); that contained language identical to the language of
§ 8-13 and authorized the town of West Hartford to create zoning districts.
See Mallory v. West Hartford, supra, 499–500. The plaintiff contended that,
because a statute setting forth procedures for approving a zone change
contained higher standards than those followed by the zoning commission,
which complied with certain special laws passed by the legislature, Spec.
Act No. 469 rendered the procedures followed by the zoning commission
unenforceable. Id. This court concluded that Spec. Act No. 469 was con-
cerned only with statutes governing the ‘‘size of yards, number of stories
and the like,’’ and did not apply to statutes governing procedures. Id., 500.
Thus, the court distinguished between substantive statutes and procedural
statutes, not between statutes governing physical standards and statutes
governing other substantive zoning standards, such as § 14-164a (a). We
note that this court in Mallory did not address the question of whether or
how general preemption principles would apply to the plaintiff’s claim. We
need not decide whether Mallory was correctly decided or, if it was, whether
the trial court correctly applied it, because, even if the trial court correctly
determined that § 8-13 applies only to physical standards, it does not render
the 2015 amendments unenforceable. We note, however, that either § 8-13
applies only to statutes governing physical standards under Mallory, as the
trial court concluded, in which case other substantive zoning statutes would
be subject to common-law preemption principles, or § 8-13 applies to all
statutes governing land use, which would lead to the same result because
§ 8-13 incorporates general preemption principles.
31
The plaintiff does not indicate whether it raised this claim in the trial
court. Because the council and the commission make no claim that the
issue is unreviewable, the parties have briefed the issue, and the plaintiff
cannot prevail, we review it. See Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 311 Conn. 123, 157–58, 84 A.3d 840
(2014) (‘‘[r]eview of an unpreserved claim may be appropriate . . . when
the minimal requirements for review are met and . . . the party who raised
the unpreserved claim cannot prevail’’ (citation omitted; emphasis omitted;
footnote omitted))
32
Section 8-13 originally was enacted in 1949. See General Statutes (1949
Rev.) § 847.
33
We further note that the plaintiff itself contends that the 2015 amend-
ments to the zoning regulations constitute a municipal ‘‘ordinance,’’ as that
word is used § 22a-73. See part IV of this opinion.
34
The council contends that there is no evidence in the record to support
the conclusion that the plaintiff and its predecessor in interest have regularly
conducted racing activities on Saturdays. As we indicated, however, the
parties did not raise this issue in the trial court, presumably because they
had simply made assumptions about the meaning of the word ‘‘weekday.’’
See footnote 10 of this opinion. Thus, the parties had no reason to believe
that they were required to submit evidence on the issue. Inasmuch as the
council makes no claim that, if given the opportunity, it could present
evidence that mufflered racing has not taken place on Saturdays since the
stipulation in Vaill IV, we conclude that we may rely on the plaintiff’s
representation and the commission’s concession that such racing has taken
place. We also may take judicial notice of the plaintiff’s public event calendar
for 2020, which indicates that racing activities are scheduled to occur on
certain Saturdays. See, e.g., Lime Rock Park, ‘‘IMSA Northeast GP’’ (indicat-
ing that sports car race will be held on plaintiff’s property on Saturday, July
18, 2020), available at http://www.limerock.com/node/1429 (last visited May
18, 2020). See generally Moore v. Moore, 173 Conn. 120, 123 n.1, 376 A.2d
1085 (1977) (court may take judicial notice of facts that ‘‘are common
knowledge and those which are capable of accurate and ready demonstra-
tion’’ (internal quotation marks omitted)).
35
As we already indicated, we need not address the plaintiff’s claim that
the trial court incorrectly, albeit implicitly, determined that the term ‘‘week
day,’’ as used in § 14-164a (a), does not include Saturdays because, regardless
of whether it does, the commission would not be preempted from restricting
Saturday racing activities more strictly than the statute or prohibiting them
altogether. See footnote 28 of this opinion. We further note that the council
has made no claim that, if we conclude that the 2015 amendments allow
Saturday racing activities, that portion of the amendments is preempted by
§ 14-164a (a) because, by failing to include Saturday racing in permitted
racing activities, the statute prohibits it. Accordingly, the question of whether
§ 14-164a (a) preempts the provisions of the 2015 amendments allowing
Saturday racing activities is not before us. We are compelled to observe,
however, that, as we indicated, Saturday was considered a weekday under
ordinary usage at the time that the statute was adopted. We also find it
unlikely that the legislature would have imposed a prohibition on Saturday
racing by omitting any reference to that day in the statute or that it would
have placed greater restrictions on Saturday racing than on Sunday racing.
36
General Statutes § 22a-73 provides in relevant part: ‘‘(a) To carry out
and effectuate the purposes and policies of this chapter it is the public policy
of the state to encourage municipal participation by means of regulation of
activities causing noise pollution within the territorial limits of the various
municipalities. To that end, any municipality may develop and establish a
comprehensive program of noise regulation. Such program may include a
study of the noise problems resulting from uses and activities within its
jurisdiction and its development and adoption of a noise control ordinance.
‘‘(b) Any municipality may adopt, amend and enforce a noise control
ordinance which may include the following: (1) Noise levels which will not
be exceeded in specified zones or other designated areas; (2) designation
of a noise control officer and the designation of an existing board or commis-
sion, or the establishment of a new board or commission to direct such
program; (3) implementation procedures of such program and the relation
of such program to other plans within the jurisdiction of the municipality;
(4) procedures for assuring compliance with state and federal noise regula-
tions; (5) noise level restrictions applicable to construction activities, includ-
ing limitation on on-site hours of operation.
‘‘(c) No ordinance shall be effective until such ordinance has been
approved by the commissioner. No ordinance shall be approved unless it
is in conformity with any state noise control plan, including ambient noise
standards, adopted pursuant to section 22a-69 or any standards or regula-
tions adopted by the administrator of the United States Environmental
Protection Agency pursuant to the Noise Control Act of 1972 . . . or any
amendment thereto. Notwithstanding the provisions of this subsection, any
municipality may adopt more stringent noise standards than those adopted
by the commissioner, provided such standards are approved by the commis-
sioner.’’
37
General Statutes § 22a-67 provides: ‘‘(a) The legislature finds and
declares that: (1) Excessive noise is a serious hazard to the health, welfare
and quality of life of the citizens of the state of Connecticut; (2) exposure
to certain levels of noise can result in physiological, psychological and
economic damage; (3) a substantial body of science and technology exists
by which excessive noise may be substantially abated; (4) the primary
responsibility for control of noise rests with the state and the political
subdivisions thereof; (5) each person has a right to an environment free
from noise that may jeopardize his health, safety or welfare.
‘‘(b) The policy of the state is to promote an environment free from
noise that jeopardizes the health and welfare of the citizens of the state of
Connecticut. To that end, the purpose of this chapter is to establish a means
for effective coordination of research and activities in noise control, to
authorize the establishment of state noise emission standards and the
enforcement of such standards, and to provide information to the public
respecting noise pollution.’’
38
The zoning regulation provided: ‘‘Noise—Any noise emitted outside the
property from which it originates shall comply with the provisions of Sec-
tions 22a-69-1 to 22a-69-7.4 of the Regulations of the Connecticut Department
of Environmental Protection (Control of Noise).’’ (Internal quotation marks
omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission,
supra, 76 Conn. App. 215, quoting Berlin Zoning Regs., § X (D) (3).
39
In this regard, we agree with the plaintiff that, when the Appellate Court
stated in Berlin Batting Cages, Inc. v. Planning & Zoning Commission,
supra, 76 Conn. App. 218, that § 8-2 did not ‘‘confer authority in the zoning
commission to promulgate regulations concerning noise pollution,’’ it did
not mean that zoning commissions have no authority under § 8-2 to consider
noise as a factor when determining whether a particular use of the land is
appropriate. Rather, the Appellate Court concluded only that zoning commis-
sions have no authority, other than that conferred by the act, to adopt
regulations like § X (D) (3) of the Berlin zoning regulations, which incorpo-
rated §§ 22a-69-1 through 22a-69-7.4 of the Regulations of Connecticut State
Agencies; see footnote 38 of this opinion; and, therefore, § X (D) (3) consti-
tuted a noise control ordinance subject to the requirements of the act.
Because the state regulations that were incorporated in § X (D) (3) expressly
set forth specific noise levels that may not be exceeded in specified zones,
we agree with the Appellate Court’s assessment. See General Statutes § 22a-
73 (b) (1) (town may adopt noise control ordinances, including ‘‘[n]oise
levels which will not be exceeded in specified zones’’); see also Regs.,
Conn. State Agencies § 22a-69-2 (designating noise zones); Regs., Conn.
State Agencies § 22a-69-3 (specifying allowable noise levels for designated
noise zones).
40
We note that the trial court rejected the plaintiff’s broader claim that
the 2015 amendments constitute illegal spot zoning, and the plaintiff has
not challenged that ruling on appeal.
41
Accordingly, we need not address the commission’s claim that the trial
court’s ruling may be affirmed on the alternative ground that the restrictions
on unmufflered racing set forth in § 211.1 (a) (3) of the 2015 amendments
were not based solely on noise impacts, but also on other impacts, such as
traffic and property values.
42
General Statutes § 8-3 (c) provides in relevant part: ‘‘All petitions
requesting a change in the regulations or the boundaries of zoning districts
shall be submitted in writing and in a form prescribed by the commission
and shall be considered at a public hearing within the period of time permit-
ted under section 8-7d. . . .’’
43
The plaintiff strongly suggests that, contrary to the trial court’s determi-
nation, it could not be required to obtain a special permit in order to continue
its present operations on the property because there was no requirement
for a special permit when it began the operations. The plaintiff does not
address the Appellate Court’s decision in Taylor v. Zoning Board of Appeals,
supra, 65 Conn. App. 687, holding that preexisting as of right uses may be
subject to a special permit requirement. We need not address the thorny
issue of whether Taylor was correctly decided and whether the commission
could, therefore, order the plaintiff to cease its racing activities until it
obtained a special permit, however, because we conclude that, even if the
commission could do so under Taylor, it could not require the filing of a
special permit application as a general condition for filing a petition to
amend the regulations.
44
As we discuss subsequently in this opinion, we recognize that the plain-
tiff cannot expand the racing activities on the property without obtaining
a special permit. In the absence of the special permit provisions, however,
there would be nothing to prevent the plaintiff from seeking an amendment
to the zoning regulations to permit expanded activities without actually
seeking a special permit to do so. We will not presume that the plaintiff
could have no good reason to pursue this course.
45
The relevant portions of the Monroe zoning regulations that then were
in effect are as follows: ‘‘Section 117-900 of the Monroe zoning regulations
. . . provide[d] in relevant part: ‘The owner or owners of a tract of land
may petition for the establishment of a design district (D) only, coincidentally
with an application for special exception permit and development proposal
which shall be proposed and developed in conformance with these regula-
tions. . . . In [d]esign [d]istricts, the existing use of land shall not be
changed . . . until a site plan of development shall have been prepared by
the owner of such land, and approved by the [c]ommission, and a [s]pecial
[e]xception shall have been granted . . . .’ ’’ (Emphasis omitted.) Zimnoch
v. Planning & Zoning Commission, supra, 302 Conn. 549 n.11.
‘‘Section 117-905 (A) of the Monroe zoning regulations . . . provide[d]
in relevant part: ‘An application for a change of zoning classification to a
design district shall be submitted in complete form . . . . The [c]ommission
shall hold a public hearing on the proposed change of zone and special
exception application, as required by the General Statutes.’
‘‘Section 117-907 (A) of the Monroe zoning regulations . . . provide[d]
in relevant part: ‘A change of zone to a design district shall not become
effective until the required special exception shall have been approved by
the [c]ommission . . . .’ ’’ (Emphasis omitted.) Zimnoch v. Planning &
Zoning Commission, supra, 302 Conn. 549 n.12.
46
Although the commission concedes that only the plaintiff may seek an
amendment to the zoning regulations, it claims that this restriction is not
arbitrary because only the plaintiff has standing to do so. The commission
does not explain why a neighboring landowner who is adversely affected
by racing activities on the property would not have standing to seek an
amendment to the zoning regulations to change the activities that are per-
mitted.
47
It is possible that, under Zimnoch, a regulation requiring the owner of
any property who conducts racing activities that are subject to the 2015
amendments to file a special permit application as a condition for filing a
petition to amend the regulations to expand the permitted use would be
valid. The special permit provisions provide, however, that the commission
cannot grant any petition to amend the zoning regulations unless it first
approves a special permit application.
48
The commission takes no position on this issue.
49
The plaintiff contended in the regulatory proceedings before the commis-
sion that, notwithstanding the series of injunctive orders in the Vaill case
restricting its use of the property since May 12, 1959, unlimited racing
and camping activities on the property are a protected nonconforming use
because those activities predated the adoption of the town’s zoning regula-
tions in 1959. Accordingly, it contended that the proposed amendments
codifying the restrictions contained in the Vaill orders and the ZBA judg-
ments would be invalid because they would deprive the plaintiff of its vested
property rights without compensation. It does not renew that claim on
appeal to this court.