Town of Wethersfield v. PR Arrow, LLC

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TOWN OF WETHERSFIELD ET AL.
v. PR ARROW, LLC
(AC 40407)
Keller, Elgo and Sullivan, Js.
Syllabus
The defendant appealed to the trial court from the decision by the plaintiff
town upholding a cease and desist order that had been issued by the
plaintiff zoning enforcement officer, L. The cease and desist order stated,
inter alia, that the defendant was in violation of the applicable town
zoning regulation (§ 5.2.H.5) that prohibited certain trucking or freight
operations on its real property, which was located in a business park
zone, without a special permit, as required by the zoning regulations.
The defendant appealed from that order to the town’s Zoning Board of
Appeals but withdrew the appeal before the board could conduct a
public hearing on the matter. When the activities at issue allegedly
continued on the defendant’s property, the plaintiffs commenced this
action, alleging, inter alia, that the defendant had violated § 5.2.H.5 due
to ongoing trucking or freight operations without a special permit. The
plaintiffs also alleged that the defendant had violated the zoning regula-
tions by permitting the parking and storage of commercial vehicles on
the property that were not accessory to any use by a tenant at the
property. The defendant thereafter filed an answer and six special
defenses, one of which alleged that § 5.2.H.5 was void for vagueness.
The trial court granted the plaintiffs’ motion to preclude evidence con-
cerning the defendant’s special defenses that had been raised in the
appeal to the board, which had been withdrawn. The court thereafter
rendered judgment for the plaintiffs and ordered, inter alia, that the
defendant obtain a special permit if it wanted to continue trucking and
freight operations on its property. The court also retained jurisdiction
as to the accessory use issue, and imposed fines and awarded costs and
attorney’s fees pursuant to statute (§ 8-12), and the defendant appealed
to this court. The trial court thereafter granted the plaintiffs’ postjudg-
ment motion for contempt, finding that the violations on the defendant’s
property had continued after it rendered judgment, and the defendant
filed an amended appeal. Held:
1. The defendant could not prevail on its claims that because the plaintiff
did not plead an accessory use violation, the trial court lacked subject
matter jurisdiction as to the issue of whether the parking and storage
of commercial vehicles on its property constituted a valid accessory
use, and that L lacked standing to bring an action on behalf of himself
or the town: that court properly retained jurisdiction as to the accessory
use issue, as that question fell within the authority conferred on the
court by § 8-12, the plaintiffs raised that issue in their complaint and
prayer for relief, and it was proper for the court, after the granting of
a permanent injunction related to trucking operations conducted on the
property without a special permit, to retain jurisdiction to the extent
that there was a question on an accessory use with respect to commercial
vehicles stored on the property; moreover, because the defendant failed
to challenge the standing of the town to maintain this action pursuant
to § 8-12 and the town was a party to the zoning enforcement action, there
was no justiciable controversy as to the standing of L, and, therefore,
the defendant’s appeal as to the standing of L was dismissed as moot.
2. The trial court properly determined that the defendant failed to exhaust
its administrative remedies as to its special defense that L exceeded his
authority in issuing the cease and desist order:
a. Although the defendant claimed that the zoning regulations vest exclu-
sive authority in the town Planning and Zoning Commission to interpret
words in the zoning regulations that are undefined, it was required first
to raise its claim before the zoning board, which is empowered by statute
(§ 8-6 [a] [1]) and the applicable town zoning regulation (§ 10.4.B.2) to
decide appeals where it is alleged that there is an error in any order of
a zoning enforcement officer and, thus, had the power to determine
whether L exceeded his authority in issuing the order in the present case;
accordingly, the defendant was required to exhaust that administrative
remedy before raising such a claim in the Superior Court, which it
indisputably did not do.
b. The defendant’s claim that an exception to the exhaustion requirement
applied because an appeal to the board would have been futile was
unavailing, as that claim was unsupported by the record and speculative:
the board had the authority to determine whether there was any error
in the cease and desist order, and to the extent that it did not rule in
the defendant’s favor, an avenue of judicial review was available to the
defendant pursuant to statute (§ 8-8 [b]); furthermore, only one of the
defendant’s six special defenses raised a constitutional claim, which
was that § 5.2.H.5 was void for vagueness and, thus, was excepted from
the exhaustion requirement, and the trial court properly determined that
the exhaustion requirement pertained to the remaining special defenses,
which concerned the actions of L in issuing the order and did not
fall within the narrow exception to the exhaustion requirement for
constitutional claims.
3. The defendant could not prevail on its claim that § 5.2.H.5 of the zoning
regulations was void for vagueness, which was based on its claim that
the words ‘‘trucking or freight operations’’ were not defined in the
regulations and that, without a definition, it could not ascertain whether
the parking and storage of commercial vehicles on its property is prohib-
ited: the term trucking operations pertained to all phases of the business
of transporting goods on trucks, L testified that the storage of trucks
was a significant facet of a trucking business, the title of § 5.2.H, which
mentions storage uses, underscored the applicability of § 5.2.H.5 to the
storage of commercial vehicles by trucking companies, and the defen-
dant and its representatives were capable of utilizing their common
sense when construing § 5.2.H.5, which dictated that the parking and
storage of trucks was part and parcel of trucking operations; moreover,
§ 5.2.H.5 provided adequate notice to the defendant of the standards
utilized to evaluate a special permit request for the parking and storage
of commercial vehicles, as it was the only provision in the regulations
that ostensibly encompassed the storage of commercial vehicles as a
principal use and specifically permitted trucking operations as a condi-
tional principal use in the business park zone, the defendant was charged
with knowledge that the storage of commercial vehicles must be specifi-
cally permitted under the regulations, which are permissive in nature,
and § 5.2.H.5 expressly required complete visual screening of equipment
on the defendant’s property, provides that owners of property in a
business park zone must obtain a special permit for a conditional use
from the commission before engaging in trucking operations on the
property, and contained detailed criteria that governed special permit
applications and the storage of commercial vehicles.
4. The defendant could not prevail on its claim that the trial court improperly
interpreted the term trucking operations and substituted its interpreta-
tion for that of the commission; that court accorded trucking and freight
operations its ordinary meaning, its construction was consistent with
the apparent intent of the commission in enacting § 5.2.H.5, as the
permissive nature of the regulations demonstrated that the commission
intended to confine the principal uses of property in the business park
zone to those specified in § 5.2 and the commission’s classification of
trucking operations as a conditional use that required a special permit
indicated that it wanted to retain an additional degree of oversight
and control over such activities, and the court was not bound by the
interpretation of § 5.2.H.5 by the commission or zoning board, as the
construction of the zoning regulation presented a question of law over
which the court was obligated to exercise plenary review.
5. The trial court properly exercised its discretion in fashioning permanent
injunctive relief in favor of the plaintiffs, as the court was presented
with evidence that commercial vehicles were being stored by trucking
companies on the defendant’s property in contravention of the regula-
tions, and the court, as the arbiter of credibility, was free to credit
that evidence.
6. The defendant’s claim that the trial court’s injunction lacked sufficient
clarity and definiteness was unavailing, the defendant having mischarac-
terized the wording of the court’s decision; the plain terms of the court’s
order were sufficiently clear and definite, as they informed the defendant
that it must obtain a special permit in accordance with the zoning
regulations in order to conduct trucking or freight operations on its
property as a principal use.
7. The trial court did not abuse its discretion by imposing a daily fine against
the defendant; although the defendant claimed that the imposition of a
fine was improper because the plaintiffs had failed to prove that the
storage of commercial vehicles on the defendant’s property was a public
nuisance, § 8-12 does not contain any such requirement, the defendant
provided no authority mandating such proof and, to obtain relief under
§ 8-12, the plaintiffs needed to prove only that the regulations were
violated, and it was within the court’s discretion to impose the fine, as
the circumstances required, from the date that the defendant withdrew
its first appeal to the board to the date of the court’s judgment.
8. The court did not abuse its discretion in awarding costs and attorney’s fees
to the plaintiffs pursuant to § 8-12, as the court set forth the applicable
standard for wilfulness in the zoning violation context, found that the
defendant willingly allowed a use of its property in contravention of
the regulations after the cease and desist order had been issued, and
noted that there was no evidence that weighed in the defendant’s favor.
9. The defendant’s claims that the trial court lacked subject matter jurisdic-
tion over the plaintiffs’ motion for contempt and that the motion was
filed prematurely and granted improperly, were unavailing:
a. The trial court’s jurisdiction over the contempt motion stemmed from
its inherent authority to enforce its orders; the defendant provided no
authority indicating that a court lacks subject matter jurisdiction over
a postjudgment motion for indirect civil contempt unless a separate
and distinct proceeding is commenced in the trial court, and although
defense counsel, for the first time, moved to dismiss the plaintiff’s motion
for contempt at the hearing thereon due to allegedly insufficient service
of process, the trial court concluded that the defendant waived that
objection to the contempt motion when it did not file a timely motion
to dismiss, and the defendant, by filing an objection to the motion and
a memorandum of law, and then fully participating in the contempt
hearing, submitted to the jurisdiction of the court.
b. The trial court properly granted the plaintiffs’ motion for contempt;
the plaintiffs were entitled to file their contempt motion at any time
after the court issued its permanent injunction, the defendant having
failed to provide any authority to the contrary or to request a discretion-
ary stay of the trial court’s order pursuant to the applicable rule of
practice (§ 61-12), the evidence adduced at the contempt hearing sub-
stantiated the court’s finding that the zoning violations that gave rise
to this enforcement action still existed on the property, and although
the defendant claimed that it operated under a good faith belief that
certain efforts it had taken constituted compliance with the court’s
order, the trial court rejected the defendant’s purported good faith under-
standing of its order, and in finding that the defendant’s failure to comply
with the order was not excused by its disingenuous attempts to avoid
compliance and that a finding of contempt was therefore warranted,
the court necessarily concluded that the defendant’s violation of the
court’s order was wilful.
Argued October 15, 2018—officially released February 5, 2019
Procedural History
Appeal from the decision by the named plaintiff
upholding an order issued to the defendant by the plain-
tiff zoning enforcement officer of the town of Wethers-
field to cease and desist certain activities on certain of
the defendant’s real property, brought to the Superior
Court in the judicial district of Hartford, where the
matter was transferred to the Land Use Litigation
Docket and tried to the court, Berger, J.; thereafter, the
court granted in part the plaintiffs’ motion to preclude
certain evidence; judgment for the plaintiffs, from
which the defendant appealed to this court; subse-
quently, the court, Berger, J., denied the defendant’s
motion to dismiss and granted the plaintiffs’ motion for
contempt, and the defendant filed an amended appeal.
Appeal dismissed in part; affirmed.
Kevin J. Burns, for the appellant (defendant).
Thomas A. Plotkin, with whom, on the brief, was
John W. Bradley, Jr., for the appellees (plaintiffs).
Opinion
ELGO, J. In this zoning enforcement action, the defen-
dant, PR Arrow, LLC, appeals from the judgment of the
trial court granting permanent injunctive relief in favor
of the plaintiffs, the town of Wethersfield (town) and
its zoning enforcement officer, Justin LaFountain.1 On
appeal, the defendant claims that (1) the court lacked
subject matter jurisdiction in multiple respects, (2) the
court improperly applied the doctrine of exhaustion of
administrative remedies, (3) the zoning regulation in
question is void for vagueness, (4) the court improperly
interpreted that regulation, (5) the court improperly
granted the permanent injunction, (6) the injunction
lacked sufficient clarity and definiteness, (7) the court
abused its discretion in imposing daily fines pursuant
to General Statutes § 8-12, (8) the court abused its dis-
cretion in awarding costs and attorney’s fees pursuant
to § 8-12 without making a finding that it wilfully vio-
lated the zoning regulations and (9) the court improp-
erly found the defendant in contempt. We dismiss as
moot the defendant’s jurisdictional challenge with
respect to the standing of LaFountain. We affirm the
judgment of the trial court in all other respects.
This appeal concerns activities conducted on real
property known as 61 Arrow Road in Wethersfield
(property) that at all relevant times was owned by the
defendant. The property is located in the ‘‘Business
Park (BP)’’ zoning district and is approved for office
and industrial use. Principal and accessory uses permit-
ted in the BP zone are specified in §§ 5.2 and 5.3, respec-
tively, of the Wethersfield Zoning Regulations
(regulations).
At all relevant times, LaFountain served as the town’s
zoning enforcement officer. In that capacity, he acted
as the agent of the town’s Planning and Zoning Commis-
sion (commission). See Piquet v. Chester, 306 Conn.
173, 176 n.1, 49 A.3d 977 (2012) (‘‘[t]he zoning enforce-
ment officer acts as the agent of the local planning and
zoning commission’’); Wethersfield Zoning Regs., art.
X, § 10.3.A.1 (‘‘[t]hese Regulations shall be enforced by
the Zoning Enforcement Official as the Commission’s
duly authorized agent for enforcement of these Regula-
tions’’). By letter dated November 18, 2015, LaFountain
issued a cease and desist order (order) to the defendant
regarding certain activities on the property. That order
stated in relevant part: ‘‘This letter is to inform you that
[the property] is in violation of the [regulations]. Section
5.2.H.5 . . . states that ‘trucking or freight operations
with complete visual screening of equipment and mate-
rials’ requires a Special Permit from the [commission].
Other commercial vehicles on the property must be
accessory to uses within the offices and industrial bays.
You are hereby ordered to Cease and Desist allowing
trucking or freight operations to be permitted on the
property. You may either appeal this order to the Zoning
Board of Appeals or comply within [fifteen] days of
receipt. . . . If you wish to maintain the trucking or
freight operations, a Special Permit would be required
from the [commission]. Failure to comply with this
order will leave this Department no alternative but to
begin issuing [$100] Citations for every day the property
is in violation. . . . In addition to any fines or penalties
imposed therein, the applicable section(s) of the [regu-
lations] may be enforced by injunctive procedure in the
Superior Court.’’2 (Emphasis in original.)
On December 2, 2015, the defendant filed an appeal
of that order with the town’s Zoning Board of Appeals
(board). The ‘‘appeal application’’ form completed by
the defendant asks applicants to ‘‘[p]lease describe your
appeal (please include your documentation backing up
your appeal).’’ In response to that query, the defendant
attached a document that enumerated nine distinct
grounds of appeal.3 Before the board could hold a public
hearing on the matter, the defendant formally withdrew
its appeal of the order by letter dated January 22, 2016.
When activities allegedly continued on the property
in contravention of the order, the plaintiffs commenced
the present action pursuant to § 8-12.4 The basis of that
action was twofold in nature. First, the plaintiffs alleged
that the defendant violated § 5.2.H.5 of the regulations
due to ‘‘ongoing ‘trucking or freight operations’ at the
[p]roperty without the required special permit . . . .’’5
Second, the plaintiffs alleged that the defendant vio-
lated the regulations by permitting the parking and stor-
age of commercial vehicles on the property that ‘‘were
not accessory to any use by a tenant.’’6 With respect to
those two grounds, the plaintiffs specifically alleged
that ‘‘the current violations of the [r]egulations at the
[p]roperty include: [a] an illegal trucking and freight
operation; [b] the parking and storage of several com-
mercial vehicles that are not associated with any busi-
ness operating at this [p]roperty; [c] the frequent ingress
and egress of tractor trailers, truck tractors, semitrail-
ers, and/or other large commercial vehicles to-from the
[p]roperty, including such vehicles that are not associ-
ated with any tenant; [d] the illegal parking of tractor
trailers, truck tractors, semitrailers, and/or other large
commercial vehicles at the [p]roperty for compensa-
tion.’’ The plaintiffs further alleged that those violations
constituted ‘‘a public nuisance due to the presence of
and traffic created by tractor trailers, truck tractors,
semitrailers, and/or other large commercial vehicles,
and the emission or odors and noise.’’ In their prayer
for relief, the plaintiffs requested, inter alia, injunctive
relief ordering the defendant to cease and desist from
the aforementioned activities, a civil penalty of $2500,
a civil fine to be imposed on a daily basis ‘‘until the
violations are remedied,’’ and an award of costs and
attorney’s fees pursuant to § 8-12.
On June 23, 2016, the defendant filed its answer, in
which it denied that any of the alleged violations had
transpired on the property. The defendant also raised
six special defenses,7 which the plaintiffs denied in their
entirety. Days later, the case was transferred by order
of the court to the land use litigation docket in the
judicial district of Hartford pursuant to General Statutes
§ 51-347b (a). On June 27, 2016, the plaintiffs filed a
certificate of closed pleadings.
Prior to the filing of the defendant’s answer, the plain-
tiffs had filed a motion in limine, in which they sought
to preclude ‘‘all evidence, whether testimonial or docu-
mentary, pertaining to any issue which was included
in the defendant’s appeal of the [order], which appeal
was filed with the [board] but withdrawn prior to an
evidentiary hearing by that municipal board.’’ In that
motion, the plaintiffs argued that, ‘‘[h]aving failed to
first proceed with an available administrative process
provided . . . by statute, the defendant should not be
permitted to present any such evidence or argument in
this case.’’ Relying principally on Greenwich v. Kristoff,
180 Conn. 575, 430 A.2d 1294 (1980), the plaintiffs
claimed that ‘‘[s]ince the defendant chose to withdraw
its [board] appeal of the [order] prior to that evidentiary
hearing, this court should prohibit the defendant from
now asserting [its] purported defenses in this zoning
enforcement litigation.’’ By order dated October 13,
2016, the court ruled that ‘‘[t]he issues in the motion
[in limine] will be taken up at trial.’’
A two day court trial was held in January, 2017. At
its outset, the court addressed the motion in limine.
The court explained that it was granting the motion
insofar as the defendant sought to present evidence on
special defenses that had been raised in the defendant’s
appeal to the board. The court nonetheless advised the
parties that it would consider such evidence to the
extent that it was relevant to the balancing of the equi-
ties inherent in injunctive relief.
At trial, more than 100 exhibits were admitted into
evidence, including dozens of photographs depicting
what generically may be described as commercial
trucks parked on the property.8 In addition, two wit-
nesses testified—LaFountain and John A. Tartaglia, the
manager and 1 percent owner of the defendant. In his
testimony, Tartaglia explained that the property was
5.5 acres in size and contained a 41,000 square foot
building (building) ‘‘divided into twelve commercial
bays and an office wing . . . .’’ He also testified that
the property contained three parking lots located on the
northerly, easterly, and southerly sides of the building.
Tartaglia indicated that the northerly parking lot located
to the rear of the building was only partially paved; the
remainder was gravel. The majority of the photographs
admitted into evidence depict commercial trucks
parked on that rear lot.
In his testimony, LaFountain confirmed that the order
was issued in response to the presence of those trucks
on the property. LaFountain testified that he had
received multiple complaints about that issue, including
a written complaint from a neighbor who resided at an
abutting condominium complex.9 Significantly, Tartag-
lia admitted in his testimony that ‘‘there were trucks
parking on the property . . . that were not tenants of
physical space in the building, but would park trucks
in the back, licensed commercial vehicles. Commercial
vehicles by definition would include any tractor-trailer
or object that has a commercial plate in the state of
Connecticut. I do not deny this.’’ In its memorandum
decision, the court found that Tartaglia had ‘‘devised
[a] ‘tag’ system . . . to allow nonbuilding tenants to
store trucks on [the] property.’’10 (Citation omitted.)
The court emphasized that the defendant’s rent rolls,
which also were admitted into evidence, documented
various ‘‘enterprises storing trucks [on the property that
were] not renting space within the buildings,’’ including
‘‘a large number of Budget trucks’’ that are plainly visi-
ble in the photographs in evidence. At trial, Tartaglia
admitted that only three of the thirteen tenants with
parking privileges listed on the defendant’s September,
2015 rent roll were renting office or industrial space in
the building at that time.
The court also was presented with evidence, which
it acknowledged in its memorandum of decision, that
subsequent to the issuance of the order, Tartaglia
sought to enter into lease agreements with tenants that
were not renting space in the building. The deposition
testimony of Melissa Ahmetovic was admitted as a full
exhibit at trial. In that testimony, Ahmetovic confirmed
that she operated a business with her husband known
as M&A Express Transport, LLC, a ‘‘trucking company’’
that transported goods across the country. In 2015, M&
A Express Transport, LLC, began renting space from the
defendant to store its trucks on the property. Ahmetovic
testified that, after LaFountain issued the order, Tartag-
lia contacted her and ‘‘said that he’s going to make out
a lease agreement stating that [Ahmetovic had] an office
in there, there will be an office . . . on the last floor
of the building . . . just in case the [plaintiff] comes
after him, to state that [she did] have an office there,
that [she does] work and everything, just in case if the
town comes after him.’’ Appended to that deposition
as an exhibit was a document titled ‘‘Office Lease’’ that
identified Ahmetovic and her husband as the tenant,
and described the use as ‘‘General Office Use’’ for which
‘‘Overnight Parking’’ was permitted, commencing on
December 1, 2015.11 Ahmetovic testified that she never
asked to rent office space on the property and thereafter
never used an office on the property.12 Although Tartag-
lia professed a lack of knowledge about the actual oper-
ations conducted on the property or the specific tenants
that were storing trucks thereon, the court expressly
found that testimony not credible in its memorandum
of decision. Tartaglia also admitted in his testimony
that he had forbidden the town’s zoning enforcement
officers from entering the property.13
At trial, the parties offered contrasting interpreta-
tions of § 5.2.H.5 of the regulations. Tartaglia opined
that the phrase ‘‘trucking or freight operations,’’ as used
in that regulation, did not apply to the mere parking
and storage of commercial vehicles, but rather required
an active trucking operation to be conducted on the
property.14 Tartaglia testified that his interpretation was
predicated on his ‘‘years involved in the real estate
business’’ and conceded that he did not examine any
of the resources specified in § 2.2.B of the regulations.15
In his testimony, LaFountain stated that he had con-
sulted those resources and also noted that § 2.3.C of the
regulations contains a definition of the term ‘‘commer-
cial vehicle,’’ which includes ‘‘box trucks’’ and ‘‘tractor
trailers.’’16 After reviewing those resources, LaFountain
concluded that ‘‘a trucking or a freight operation essen-
tially is an activity where the main operation is the trans-
portation of materials using trucks. If your business is
using trucks to move materials or freight . . . it’s a
trucking or freight operation.’’ LaFountain also empha-
sized that ‘‘the parking of trucks is . . . a very large
facet of a trucking operation. . . . [W]hen you have a
truck storage yard, for lack of a better term, it’s where
the primary piece of equipment that you use in a truck-
ing operation is being stored.’’ For that reason, he con-
cluded that the parking and storage of commercial
vehicles by entities engaged in the transportation of
goods constituted ‘‘trucking or freight operations’’ on
the property, for which a special permit was required
pursuant to § 5.2.H.5 of the regulations. LaFountain fur-
ther opined that the parking and storage of commercial
trucks by tenants that were not engaged in a principal
industrial or office use on the property could not be
deemed an accessory use under the regulations.
In its April 20, 2017 memorandum of decision, the
court found that the plaintiffs had ‘‘clearly proved by
a preponderance of the evidence that the defendant is
engaging in a trucking or freight operation without a
special permit in violation of the town’s zoning regula-
tions. Notwithstanding Tartaglia’s protestations and his
allowed testimony on equitable considerations, there
is no evidence that weighs in the defendant’s favor.’’ The
court thus granted the plaintiffs’ request for permanent
injunctive relief and ordered: ‘‘[T]he defendant must
comply with the town’s regulations. If it seeks to con-
duct such trucking and freight operations on the prop-
erty, it must first obtain a special permit to do so in
accordance with the town’s zoning regulations. Hence,
all trucking operations not associated with a specific
tenant business use on the property . . . or any truck-
ing and freight operations being conducted without a
special permit must immediately cease. Further, in
accordance with § 8-12, this court imposes a civil fine
of $2500 for the violation of the cease and desist order
as well as a civil fine of $50 per day from January 22,
2016, to the date of this order, together with costs and
attorney’s fees to be established at a hearing at a later
date.’’ In addition, the court noted that ‘‘[t]o the extent
there is a question on an accessory use, this court will
retain jurisdiction.’’ From that judgment, the defendant
appealed to this court on May 3, 2017.
The plaintiffs subsequently filed a motion for con-
tempt with the trial court, alleging in relevant part that
the defendant ‘‘continues to operate trucking or freight
operations on the property, and continues to allow the
parking or storage of trucks without a special permit
in violation of the [regulations] and in violation of this
court’s order that [it] immediately cease the illegal activ-
ity.’’ The defendant filed an objection to that motion,
and the court held a hearing on July 6, 2017. By memo-
randum of decision dated August 18, 2017, the court
granted the motion for contempt, finding that ‘‘the testi-
mony and the evidence is clear that the subject viola-
tions still exist.’’ The court then expressly ‘‘deferred
the issue of monetary penalties’’ while the underlying
matter was on appeal, but noted that ‘‘[t]he evidence
from this proceeding will be included in that evalua-
tion.’’ The defendant thereafter filed an amended appeal
with this court to encompass the trial court’s ruling on
the motion for contempt.
I
The defendant claims that the trial court lacked sub-
ject matter jurisdiction in two respects. It first alleges
that ‘‘because [the] plaintiff[s] did not plead an acces-
sory use violation, the court erred in making findings
and retaining jurisdiction thereon.’’ The defendant also
argues that LaFountain lacked standing to sue on behalf
of himself or the town. Those contentions are equally
unavailing.
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it is
without jurisdiction . . . .’’ (Internal quotation marks
omitted.) Peters v. Dept. of Social Services, 273 Conn.
434, 441, 870 A.2d 448 (2005). ‘‘Jurisdiction of the sub-
ject matter is the power [of the court] to hear and
determine cases of the general class to which the pro-
ceedings in question belong. . . . A court has subject
matter jurisdiction if it has the authority to adjudicate
a particular type of legal controversy.’’ (Internal quota-
tion marks omitted.) Metropolitan District v. Commis-
sion on Human Rights & Opportunities, 180 Conn.
App. 478, 485, 184 A.3d 287, cert. denied, 328 Conn. 937,
184 A.3d 267 (2018). ‘‘Any determination regarding the
scope of a court’s subject matter jurisdiction or its
authority to act presents a question of law over which
our review is plenary.’’ Tarro v. Mastriani Realty, LLC,
142 Conn. App. 419, 431, 69 A.3d 956, cert. denied, 309
Conn. 912, 69 A.3d 308, 309 (2013). In addition, when
a decision as to whether a court has subject matter
jurisdiction is required, ‘‘every presumption favoring
jurisdiction should be indulged.’’ (Internal quotation
marks omitted.) Novak v. Levin, 287 Conn. 71, 79, 951
A.2d 514 (2008).
A
The defendant’s first claim requires little discussion.
The plaintiffs brought this action pursuant to § 8-12,
which ‘‘empowers [zoning enforcement] officers . . .
to take overt action in order to compel compliance with
the zoning laws.’’ (Internal quotation marks omitted.)
Labulis v. Kopylec, 128 Conn. App. 571, 578 n.11, 17
A.3d 1157 (2011). As this court has observed, ‘‘[t]he
purpose of § 8-12 is to provide a means to enforce the
zoning regulations and to prevent an unlawful use’’ of
property. Stamford v. Stephenson, 78 Conn. App. 818,
826, 829 A.2d 26, cert. denied, 266 Conn. 915, 833 A.2d
466 (2003). Whether the parking and storage of commer-
cial vehicles by trucking companies on the property
constituted a valid accessory use is a question that
plainly falls within the scope of authority conferred on
the court by § 8-12. The court, therefore, did not lack
subject matter jurisdiction over that issue.
While the court generally is not permitted to decide
issues beyond those raised in the pleadings; see Lynn
v. Bosco, 182 Conn. App. 200, 213, 189 A.3d 601 (2018);
the plaintiffs in their complaint raised the issue of
whether the activities in question constituted a valid
accessory use.17 Paragraph 6 of that pleading complains
of ‘‘the existence of . . . commercial vehicles at the
property, which were not accessory to any use by a
tenant. . . .’’18 Paragraph 8 then alleges in relevant part
that ‘‘[t]he current violations of the regulations at the
property include . . . [b] the parking and storage of
several commercial vehicles that are not associated
with any business operating at this property; [c] the
frequent ingress and egress of tractor trailers, truck
tractors, semitrailers, and/or other large commercial
vehicles to/from the property, including such vehicles
that are not associated with any tenant . . . .’’19 Fur-
thermore, in their prayer for relief, the plaintiffs
requested, among other things, injunctive relief barring
‘‘the parking and storage of any commercial vehicle not
associated with any business operating at this property
. . . .’’ Accordingly, the question of whether the parking
and storage of commercial vehicles on the property
constituted a valid accessory use properly was at issue
in this zoning enforcement action.
Although the defendant argues that the court improp-
erly retained jurisdiction on that issue, it is well estab-
lished that ‘‘a permanent injunction necessarily requires
continuing jurisdiction . . . .’’ Hall v. Dichello Distrib-
utors, Inc., 14 Conn. App. 184, 193, 540 A.2d 704 (1988);
accord AvalonBay Communities, Inc. v. Plan & Zoning
Commission, 260 Conn. 232, 242 n.11, 796 A.2d 1164
(2002) (‘‘courts have inherent power to change or mod-
ify their own injunctions that is not limited by [General
Statutes] § 52–212a’’ [emphasis in original]); Conserva-
tion Commission v. Price, 5 Conn. App. 70, 73, 496 A.2d
982 (1985) (‘‘the court retained continuing jurisdiction
through its original grant of a permanent injunction to
the town’’). For that reason, we conclude that the court,
after granting a permanent injunction to enjoin ‘‘all
trucking operations’’ that are ‘‘conducted without a spe-
cial permit’’ and are ‘‘not associated with a specific
tenant business use on the property,’’ properly retained
jurisdiction ‘‘[t]o the extent there is a question on an
accessory use’’ with respect to commercial vehicles
stored on the property.
B
The defendant also argues that LaFountain lacks
standing in the present case. Because the defendant
does not challenge the standing of the town to maintain
this zoning enforcement action, that claim is moot.
In DeRito v. Zoning Board of Appeals, 18 Conn. App.
99, 100, 556 A.2d 632 (1989), the defendant property
owners appealed to this court from the judgment of
the trial court in favor of the plaintiffs, the town of
Middlebury and its zoning enforcement officer. On
appeal, the defendants challenged the standing of the
zoning enforcement officer. This court declined to con-
sider the merits of that contention, stating: ‘‘[T]he defen-
dants do not challenge the standing of the plaintiff town
of Middlebury . . . . Thus, even without [the zoning
enforcement officer] as a party to the [action], the trial
court had subject matter jurisdiction . . . by virtue of
the presence of the plaintiff town of Middlebury.’’ (Cita-
tions omitted.) Id., 103. As a result, this court concluded
that ‘‘the standing of [the zoning enforcement officer]
. . . presents no justiciable controversy on appeal’’
because ‘‘[n]o practical relief can be granted to the
defendants on this claim, and it is not the province of
appellate courts to decide questions disconnected from
the granting of actual relief or from the determination
of which no practical relief can follow.’’ Id., 103–104.
The court thus dismissed that part of the appeal. Id., 104.
That logic applies equally to the present case. Here,
the town is a party to the zoning enforcement action
brought against the defendant pursuant to § 8-12. As in
DeRito, the defendant has not challenged the standing
of that municipality. Accordingly, the standing of
LaFountain presents no justiciable controversy in this
appeal. See id., 103–104. The portion of the defendant’s
appeal challenging his standing, therefore, must be dis-
missed.
II
We next address the defendant’s claim that the court
improperly applied the doctrine of exhaustion of admin-
istrative remedies to its special defenses due to the
defendant’s withdrawal of its appeal to the board. The
applicability of that doctrine implicates the subject mat-
ter jurisdiction of the Superior Court; Piquet v. Chester,
supra, 306 Conn. 179; and thus presents a question of
law over which our review is plenary. Financial Con-
sulting, LLC v. Commissioner of Ins., 315 Conn. 196,
208, 105 A.3d 210 (2015).
A
‘‘The doctrine of exhaustion of administrative reme-
dies is well established in the jurisprudence of adminis-
trative law. . . . Under that doctrine, a trial court lacks
subject matter jurisdiction over an action that seeks a
remedy that could be provided through an administra-
tive proceeding, unless and until that remedy has been
sought in the administrative forum. . . . In the absence
of exhaustion of that remedy, the action must be dis-
missed.’’ (Internal quotation marks omitted.) Republi-
can Party of Connecticut v. Merrill, 307 Conn. 470,
477, 55 A.3d 251 (2012); see also Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 50–51, 58 S. Ct. 459,
82 L. Ed. 638 (1938) (‘‘no one is entitled to judicial relief
for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted’’). ‘‘The
exhaustion doctrine reflects the legislative intent that
such issues be handled in the first instance by local
administrative officials in order to provide aggrieved
persons with full and adequate administrative relief,
and to give the reviewing court the benefit of the local
board’s judgment.’’ (Internal quotation marks omitted.)
Simko v. Ervin, 234 Conn. 498, 504, 661 A.2d 1018
(1995); see also Owner-Operators Independent Drivers
Assn. of America v. State, 209 Conn. 679, 692, 553 A.2d
1104 (1989) (exhaustion doctrine ‘‘relieves courts of the
burden of prematurely deciding questions that,
entrusted to an agency, may receive a satisfactory
administrative disposition and avoid the need for judi-
cial review’’). Our courts have long recognized that the
doctrine applies to administrative proceedings of
municipal land use agencies such as the board. See,
e.g., Piquet v. Chester, supra, 306 Conn. 190–91; Simko
v. Ervin, supra, 503; Florentine v. Darien, 142 Conn.
415, 431, 115 A.2d 328 (1955).
Under Connecticut law, municipal zoning boards of
appeal are empowered ‘‘[t]o hear and decide appeals
where it is alleged that there is an error in any order,
requirement or decision made by the official charged
with the enforcement of this chapter or any bylaw,
ordinance or regulation adopted under the provisions
of this chapter . . . .’’ General Statutes § 8-6 (a) (1);
see also General Statutes § 8-7 (‘‘[t]he concurring vote
of four members of the zoning board of appeals shall
be necessary to reverse any order, requirement or deci-
sion of the official charged with the enforcement of
the zoning regulations’’). That grant of power also is
reflected in the local regulations at issue in the present
case,20 which authorize the board ‘‘[t]o hear and decide
appeals where it is alleged that there is an error in an
order or decision of the Zoning Enforcement Official
in the enforcement of these Regulations.’’ Wethersfield
Zoning Regs., art. X, § 10.4.B.2. Those reciprocal state
and municipal enactments represent a legislative deter-
mination ‘‘that an appeal [to the zoning board of
appeals] is the proper mechanism for challenging the
decision of a zoning enforcement officer.’’ Wnuk v. Zon-
ing Board of Appeals, 225 Conn. 691, 697 n.8, 626 A.2d
698 (1993).
Like the present case, Piquet v. Chester, supra, 306
Conn. 176, involved a cease and desist order issued by
a municipal zoning enforcement officer. After reviewing
the doctrine of exhaustion of administrative remedies,
our Supreme Court held that ‘‘when a landowner
receives notice from a zoning [enforcement] officer that
the landowner’s existing use of his or her property is
in violation of applicable zoning ordinances or regula-
tions, that interpretation constitutes a decision from
which the landowner can appeal to the local zoning
board of appeals . . . .’’ Id., 185; see also Greenwich
v. Kristoff, supra, 180 Conn. 578 (‘‘[c]learly the defen-
dant had a statutory right to appeal the cease and desist
order to the zoning board of appeals’’); Holt v. Zoning
Board of Appeals, 114 Conn. App. 13, 22, 968 A.2d 946
(2009) (‘‘[a]ppeals [to the zoning board of appeals] are
often taken from actions of zoning enforcement officers
that involve . . . the issuance of cease and desist
orders’’). The court thus concluded that the plaintiff’s
failure to exhaust that administrative remedy prior to
instituting a declaratory action ‘‘left the trial court with-
out jurisdiction . . . .’’21 Piquet v. Chester, supra, 191.
In the present case, LaFountain issued a cease and
desist order that apprised the defendant that, in his
view, the existing use of the property violated the regu-
lations. Inherent in that order was a determination that
the defendant did not have a valid nonconforming use.
See Greenwich v. Kristoff, supra, 180 Conn. 578. Pursu-
ant to both §§ 8-6 (a) (1) and 8-7 of the General Statutes
and § 10.4.B.2 of the regulations, the defendant was
entitled to appeal those determinations to the board,
which the defendant, in fact, did. See footnote 3 of this
opinion. Had the defendant not withdrawn that appeal,
the board could have determined whether LaFountain’s
interpretation of the applicable regulations was proper
and whether the defendant had an existing nonconform-
ing use. See Piquet v. Chester, supra, 306 Conn. 190;
Greenwich v. Kristoff, supra, 578; Lane v. Cashman,
179 Conn. App. 394, 429, 180 A.3d 13 (2018); Borden v.
Planning & Zoning Commission, 58 Conn. App. 399,
411, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d
1023 (2000).
On appeal, the defendant attempts to draw a distinc-
tion between LaFountain’s interpretation of the regula-
tions and his authority to do so, claiming that § 2.2.B22
vests exclusive authority in the commission to interpret
words in the regulations that are undefined. Irrespective
of the merits of that novel contention, it nonetheless
remains that the defendant was free to raise that very
argument in an appeal to the board. We reiterate that,
by their plain language, General Statutes § 8-6 (a) (1)
and § 10.4.B.2 of the regulations both empower the
board to hear and decide appeals where it is alleged that
there is an error in any order of a zoning enforcement
officer. That broad grant conferred on the board the
power to decide whether LaFountain exceeded his
authority in issuing the order in the present case. The
defendant thus was required to exhaust that administra-
tive remedy before raising such a claim before the Supe-
rior Court, which it indisputably did not do.
B
The defendant further claims that two exceptions to
the exhaustion requirement excuse its failure to obtain
a ruling from the board on the propriety of the order.
We address each in turn.
1
The defendant first invokes the futility exception to
the exhaustion requirement, claiming that an appeal to
the board in this case ‘‘would have been futile . . . .’’ As
our Supreme Court has explained, the futility exception
applies ‘‘only when [the administrative remedy] could
not result in a favorable decision . . . .’’ (Emphasis
added.) O & G Industries, Inc. v. Planning & Zoning
Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995);
see also Concerned Citizens of Sterling v. Sterling, 204
Conn. 551, 560, 529 A.2d 666 (1987) (‘‘[F]utility is more
than a mere allegation that the administrative agency
might not grant the relief requested. In most instances,
we have held that the failure to exhaust an administra-
tive remedy is permissible only when the administrative
remedy would be useless.’’). Our Supreme Court further
has instructed that ‘‘an administrative remedy is ade-
quate when it could provide the [party] with the relief
that it seeks and provide a mechanism for judicial
review of the administrative decision.’’ O & G Indus-
tries, Inc. v. Planning & Zoning Commission, supra,
426.
The defendant’s bald allegation that an appeal to the
board would have been futile finds no support in the
record before us and, thus, is ‘‘purely speculative.’’ Id.,
429. In the present case, the board had the authority,
under both state law and municipal regulation, to deter-
mine whether there was any error in the order issued
by LaFountain. Moreover, to the extent that the board
did not rule in the defendant’s favor, an avenue of judi-
cial review was available pursuant to General Statutes
§ 8-8 (b).23 The defendant’s claim of futility, therefore,
fails.
2
The defendant also claims that its constitutional
claims are excepted from the exhaustion requirement.
Our Supreme Court has recognized a ‘‘narrow excep-
tion’’ for claims of constitutional dimension; LaCroix
v. Board of Education, 199 Conn. 70, 79, 505 A.2d 1233
(1986); that ‘‘applies when the challenge is to the consti-
tutionality of the statute or regulation under which the
board or agency operates, rather than to the actions
of the board or agency.’’ O & G Industries, Inc. v.
Planning & Zoning Commission, supra, 232 Conn. 426
n.5; see also Conto v. Zoning Commission, 186 Conn.
106, 115, 439 A.2d 441 (1982) (constitutional exception
applies when party alleges ‘‘[a] constitutional defect in
the [zoning] regulations whose enforcement is at
issue’’); Helbig v. Zoning Commission, 185 Conn. 294,
300, 440 A.2d 940 (1981) (‘‘[o]ur estoppel doctrine does
not preclude a party from attacking the constitutionality
of a statute or [zoning] ordinance in an independent
proceeding’’). That exception to the exhaustion require-
ment also applies when a defendant raises ‘‘the constitu-
tional validity of a municipal [zoning] ordinance [as a
defense to] an action to enforce its provisions against
[the defendant].’’ Norwich v. Norwalk Wilbert Vault
Co., 208 Conn. 1, 5, 544 A.2d 152 (1988).
In answering the complaint in the present case, the
defendant raised multiple defenses predicated on pro-
tections embodied in our state and federal constitu-
tions. See footnote 7 of this opinion. With one
exception, those defenses all pertain to the actions of
LaFountain in issuing the order, which are beyond the
narrow purview of the constitutional exception. See
O & G Industries, Inc. v. Planning & Zoning Commis-
sion, supra, 232 Conn. 426 n.5. The court, therefore,
properly determined that the exhaustion requirement
applied to those defenses.
The exception is the defendant’s fifth special defense,
in which the defendant argues that § 5.2.H.5 of the regu-
lations is void for vagueness. Unlike its other defenses,
the defendant’s fifth special defense contests the consti-
tutionality of the zoning regulation itself, which LaFoun-
tain enforced as the agent of the commission. See
Wethersfield Zoning Regs., art. X, § 10.3.A. In that
defense, the defendant challenges the language
employed in the zoning regulation, rather than the
actions of the official tasked with its enforcement. See
Addessi v. Connecticut Light & Power Co., 10 Conn.
App. 86, 88, 521 A.2d 605 (1987) (noting that ‘‘the lan-
guage of the statute . . . is central to the constitutional
void for vagueness analysis’’). For that reason, it prop-
erly may be raised as a special defense in this injunctive
action. See Norwich v. Norwalk Wilbert Vault Co.,
supra, 208 Conn. 7 (‘‘where the plaintiff city has haled
the defendant into court, the defendant may defend on
the ground of the general invalidity of the ordinance,
without exhausting all available administrative reme-
dies’’). Moreover, this court has recognized that a void
for vagueness challenge to a municipal zoning regula-
tion qualifies under the constitutional exception to the
exhaustion requirement. Ogden v. Zoning Board of
Appeals, 157 Conn. App. 656, 666, 117 A.3d 986, cert.
denied, 319 Conn. 927, 125 A.3d 202 (2015). The trial
court improperly concluded otherwise. We therefore
must consider the merits of the defendant’s claim that
§ 5.2.H.5 of the regulations is void for vagueness, which
claim the parties have briefed in this appeal.
III
The void for vagueness doctrine ‘‘is a procedural due
process concept that originally was derived from the
guarantees of due process contained in the fifth and
fourteenth amendments to the United States constitu-
tion. . . . [Our Supreme Court has] equated vagueness
analysis under our state constitution with the corres-
ponding federal constitutional analysis.’’ (Citation omit-
ted; internal quotation marks omitted.) State v.
McMahon, 257 Conn. 544, 551 n.9, 778 A.2d 847 (2001),
cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed.
2d 972 (2002). ‘‘The vagueness rubric . . . is largely
based on the requirements of fair notice and nondiscre-
tionary standards. . . . Due process requires that a
statute afford a person of ordinary intelligence a reason-
able opportunity to know what is permitted or prohib-
ited.’’ (Citation omitted; internal quotation marks
omitted.) Addessi v. Connecticut Light & Power Co.,
supra, 10 Conn. App. 87–88. Furthermore, ‘‘[a]n impre-
cise statute . . . may be sufficiently definite if it pro-
vides reasonably distinct boundaries for its fair
administration.’’ State Management Assn. of Connecti-
cut, Inc. v. O’Neill, 204 Conn. 746, 758, 529 A.2d 1276
(1987).
Civil enactments like the zoning regulation at issue
in the present case ‘‘must be definite in their meaning
and application, but may survive a vagueness challenge
by a lesser degree of specificity than in criminal stat-
utes.’’ (Internal quotation marks omitted.) Id., 757. ‘‘In
order to pass constitutional muster, a zoning ordinance
need not contain detailed and rigid standards that antici-
pate every conceivable factual situation. Indeed, [our
Supreme Court has] recognized that detailed standards
within a zoning ordinance that may be impractical or
impossible to apply are not necessary, and that some
flexibility is permitted when one standard cannot be
adopted to all situations.’’ Campion v. Board of Alder-
men, 278 Conn. 500, 526, 899 A.2d 542 (2006). Further-
more, when the regulation at issue pertains to a
specially permitted use,24 additional leeway ‘‘must be
afforded’’ in construing its wording. Barberino Realty &
Development Corp. v. Planning & Zoning Commis-
sion, 222 Conn. 607, 620, 610 A.2d 1205 (1992).
A municipal zoning regulation, like a statute, ‘‘is not
void for vagueness unless it clearly and unequivocally
is unconstitutional, making every presumption in favor
of its validity.’’ (Internal quotation marks omitted.)
Graff v. Zoning Board of Appeals, 277 Conn. 645, 672,
894 A.2d 285 (2006). ‘‘The party challenging a [regula-
tion’s] constitutionality has a heavy burden of proof;
the unconstitutionality must be proven beyond all rea-
sonable doubt.’’ Bottone v. Westport, 209 Conn. 652,
657, 553 A.2d 576 (1989). That heavy burden requires
proof ‘‘that the regulation complained of is impermissi-
bly vague as applied to the facts of the particular case.’’
(Emphasis added.) Barberino Realty & Development
Corp. v. Planning & Zoning Commission, supra, 222
Conn. 620; see also Bombero v. Planning & Zoning
Commission, 218 Conn. 737, 743, 591 A.2d 390 (1991)
(because regulations ‘‘do not exist in a vacuum,’’ courts
should evaluate ‘‘their purported vagueness . . . in the
context of a specific factual situation, so that a court
may resolve any ambiguities and, if necessary, interpret
them in the light of those facts so as to avoid any
potentially unconstitutional vagueness’’); Rocque v.
Farricielli, 269 Conn. 187, 205, 848 A.2d 1206 (2004)
(‘‘[t]o do otherwise . . . would be to put courts in the
undesirable position of considering every conceivable
situation which might possibly arise in the application
of [the regulation]’’ [internal quotation marks omitted]).
Accordingly, ‘‘outside the context of the first amend-
ment, in order to challenge successfully the facial valid-
ity of a [regulation], a party is required to demonstrate
. . . that the [regulation] may not be applied constitu-
tionally to the facts of [the] case.’’ (Internal quotation
marks omitted.) Id. The determination of whether a
zoning regulation is impermissibly vague is a question
of law and thus subject to our plenary review. Ogden
v. Zoning Board of Appeals, supra, 157 Conn. App. 669.
A
Because Regulations Are Permissive, Parking
And Storage of Commercial Vehicles
On Defendant’s Property Must Be
Specifically Permitted
We begin our analysis by noting the overarching prin-
ciple that any use of real property in the town is ‘‘prohib-
ited if not clearly permitted’’ under the regulations.25
Like the majority of municipalities in Connecticut, the
town’s regulations here are ‘‘permissive in nature,
meaning that those matters not specifically permitted
are prohibited.’’ Graff v. Zoning Board of Appeals,
supra, 277 Conn. 653. The defendant, like all property
owners in the town, therefore was charged with notice
that any activity conducted on the property must be
specifically permitted under the regulations. See M &
L Homes, Inc. v. Zoning & Planning Commission,
187 Conn. 232, 244–45, 445 A.2d 591 (1982) (buyers of
property charged with knowledge of zoning regula-
tions); Kalimian v. Zoning Board of Appeals, 65 Conn.
App. 628, 632, 783 A.2d 506 (property owner ‘‘charged
with notice’’ of ‘‘zoning regulations in effect’’ when pur-
chasing property), cert. denied, 258 Conn. 936, 785 A.2d
231 (2001).26
The activity at issue in this case is the parking and
storage of commercial vehicles on real property located
in the BP zone. Only three sections of the regulations
specifically address that activity.27 The first two deal
with accessory use. Section 3.5.5, which is part of the
section of the regulations addressing accessory uses in
residential zones, specially permits the parking of one
commercial vehicle in a residential district, subject to
certain requirements. Section 3.5.5.B details specific
criteria regarding commercial vehicles that are to be
considered in addition to the special permit require-
ments contained in article VIII of the regulations.28 Sec-
tion 3.5.5.C then indicates that those criteria also apply
to the parking of commercial vehicles in business zones,
stating: ‘‘The parking of commercial vehicles is permit-
ted in business zones as an accessory use to the permit-
ted use of the property after the issuance of Site
Development Plan approval from the [commission] per-
mitting such vehicles. The [c]ommission shall be gov-
erned by the submission requirements and review
criteria of [§] 3.5.5.B of these regulations.’’ Section 5.3.2,
in turn, permits the ‘‘Parking of Commercial Vehicles,
subject to the provisions of [§] 3.5.5.B’’ as an accessory
use of properties in the BP zone following site plan
approval by the commission. Accordingly, the parking
and storage of commercial vehicles may be permitted
as an accessory use pursuant to §§ 3.5.5.C and 5.3.2 of
the regulations, as the court recognized in its memoran-
dum of decision.29 At the same time, nothing in either
§§ 3.5.5 or 5.3.2 permits the parking and storage of com-
mercial vehicles as a principal use.
Principal uses of real property permitted in the BP
zone are set forth in § 5.2 of the regulations. The only
conceivable subsection that could authorize the parking
and storage of commercial vehicles as a principal use
of the defendant’s property is § 5.2.H.5, which provides
that ‘‘[t]rucking or freight operations with complete
visual screening of equipment and materials’’ may be
conducted as a ‘‘Conditional Use Permitted Only After
Special Permit Approval By the Commission’’ in the BP
zone.30 In the order at issue in this appeal, LaFountain
cited that section and noted that it requires a special
permit from the commission.
B
Language of § 5.2.H.5
On appeal, the defendant claims that § 5.2.H.5 of the
regulations is void for vagueness. Its claim is premised
on the fact that the words ‘‘trucking or freight opera-
tions’’ are not defined in the regulations. Without a
definition, the defendant argues, it cannot ascertain
whether the parking and storage of commercial vehicles
is prohibited on its property. We disagree.
As this court repeatedly has recognized, ‘‘a zoning
regulation is [not] necessarily vague because it contains
a term that is not defined.’’ Ogden v. Zoning Board of
Appeals, supra, 157 Conn. App. 669–70; see also Zarem-
bski v. Warren, 28 Conn. App. 1, 5, 609 A.2d 1039, cert.
denied, 223 Conn. 918, 614 A.2d 831 (1992). Rather,
undefined words in zoning regulations are accorded
their ordinary meaning. Property Group, Inc. v. Plan-
ning & Zoning Commission, 226 Conn. 684, 692, 628
A.2d 1277 (1993); see also Spero v. Zoning Board of
Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991) (words
in zoning regulation ‘‘are to be interpreted in accor-
dance with their natural and usual meaning’’). Our
Supreme Court has explained that ‘‘[i]f the meaning of
a [regulation] can be fairly ascertained a [regulation]
will not be void for vagueness since [m]any [regulations]
will have some inherent vagueness, for [i]n most English
words and phrases there lurk uncertainties. . . . Refer-
ences to judicial opinions involving the [regulation], the
common law, legal dictionaries, or treatises may be
necessary to ascertain a [regulation’s] meaning to deter-
mine if it gives fair warning.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Graff v. Zoning Board of
Appeals, supra, 277 Conn. 673; accord Heim v. Zoning
Board of Appeals, 289 Conn. 709, 717, 960 A.2d 1018
(2008) (appropriate to look to common understanding
as expressed in dictionary when zoning regulations do
not define term).
General Statutes (Rev. to 2015) § 14-1 (94), as
amended by No. 15-46, § 1, of the 2015 Public Acts,
defines ‘‘truck’’ as ‘‘a motor vehicle designed, used or
maintained primarily for the transportation of prop-
erty.’’ Webster’s Third New International Dictionary
(2002)31 defines trucking as ‘‘the process or business of
transporting goods on trucks’’; defines freight as ‘‘some-
thing that is loaded for transportation’’; and defines
‘‘operations’’ as ‘‘a phase of a business or of business
activity.’’ Considered together, those definitions indi-
cate that the term ‘‘trucking operations’’ pertains to all
phases of the business of transporting goods on trucks.
As LaFountain noted in his testimony at trial, the stor-
age of trucks is a significant facet of a trucking business.
The Court of Appeals of New Mexico similarly has rec-
ognized that ‘‘[p]art of the business of running a trucking
enterprise involves the storage of the vehicles when
they are not in use.’’32 Smart v. Carpenter, 139 N.M.
524, 527, 134 P.3d 811 (App. 2006); see also McKosky
v. Planning & Zoning Commission, Docket No. CV-
XX-XXXXXXX-S, 2014 WL 6996359 (Conn. Super. October
31, 2014) (upholding commission’s finding that trucking
business existed on property where owner stored truck
on property); Morgan v. Callaway, Docket No. Civ. A
02A-02-002, 2003 WL 1387127, *2 (Del. Super. January
29, 2003) (‘‘trucking operations’’ conducted on property
where ‘‘the trucks were stored’’); Parish of Jefferson
v. H4th & B, Inc., 155 So. 3d 567, 571 (La. App. 2013)
(‘‘the trucking business’’ included ‘‘storage of vehicles
on the property’’); Bisson v. Eck, 40 Mass. App. 942,
942, 667 N.E.2d 276 (noting that plaintiff ‘‘had used the
land for the storage and maintenance of tractor trailer
trucks and other vehicles in connection with his truck-
ing business’’), review denied, 423 Mass. 1107, 671
N.E.2d 951 (1996); Lancaster Township v. Zoning
Hearing Board, 6 A.3d 1032, 1036 (Pa. Commw. 2010)
(trucks stored on property ‘‘inseparable’’ from trucking
business); St. Croix County v. Bettendorf, Docket No.
99-1776, 2000 WL 365860, *1 (Wis. App. April 1, 2000)
(decision without published opinion, 235 Wis. 2d 277,
616 N.W.2d 525 [App. 2000]) (‘‘[t]he absence of authori-
zation for parking in the ordinances demonstrates that
parking and storage are considered an integral part’’ of
defendant’s trucking business).
Furthermore, it bears emphasis that § 5.2.H.5 is a
subsection of § 5.2.H—a section of the regulations titled
‘‘Industrial & Storage Uses.’’ (Emphasis added.) That
title is illuminating; see P.X. Restaurant, Inc. v. Wind-
sor, 189 Conn. 153, 160, 454 A.2d 1258 (1983); and fur-
ther underscores the applicability of § 5.2.H.5 to the
storage of commercial vehicles by trucking companies
in the BP zone.
In construing the words of a zoning regulation, ‘‘com-
mon sense must be used.’’ Smith v. Zoning Board of
Appeals, 227 Conn. 71, 92, 629 A.2d 1089 (1993), cert.
denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540
(1994). To paraphrase the observation of our Supreme
Court in Graff v. Zoning Board of Appeals, supra, 277
Conn. 675, the defendant and its representatives were
just as capable of utilizing their common sense when
construing § 5.2.H.5 of the regulations as any other
member of the general public, which dictates that the
parking and storage of trucks is part and parcel of
trucking operations.
C
Adequacy of Notice
The remaining question is whether the regulations
provided the defendant adequate notice of the stan-
dards utilized to evaluate a request for that permitted
use. See Campion v. Board of Aldermen, supra, 278
Conn. 526. That query must be resolved in light of the
‘‘specific factual situation’’ presented in this case.
Bombero v. Planning & Zoning Commission, supra,
218 Conn. 743.
The specific factual situation here is a property owner
that knowingly allowed trucking companies to store
their commercial vehicles on its property. Tartaglia
acknowledged that most of his tenants were registered
as transport companies, such as Igor Stefak, who oper-
ated Igor Transportation, LLC. Tartaglia testified that
Stefak had ‘‘a United States Department of Transporta-
tion carrier license’’ and was storing ‘‘ten or eleven’’
commercial vehicles on the property at the time of
trial. M&A Express Transport, LLC, is another trucking
company that stored its trucks on the property. As Tar-
taglia emphatically stated at the subsequent contempt
hearing, the defendant’s tenants were ‘‘registered as
transport companies or courier companies. Indeed, that
is their business. They transport through the United
States Postal Service, pharmaceutical companies, Ama-
zon. At my property, they operate offices and they park
their trucks. . . . We have never denied this.’’ It suf-
fices to say, then, that the defendant was cognizant
that trucking companies were storing their commercial
vehicles on the property. Moreover, the photographs
admitted into evidence demonstrate that numerous
commercial vehicles were stored on the property, some
bearing the name of a particular trucking company such
as ‘‘Igor Transportation, LLC,’’ ‘‘VM Express,’’ and ‘‘M&
A Express Transport, LLC.’’
Because the regulations here are permissive in
nature, the defendant is charged with knowledge that
the storage of those commercial vehicles on the prop-
erty must be specifically permitted thereunder. See
Wethersfield Zoning Regs., art. II, § 2.1.A; Graff v. Zon-
ing Board of Appeals, supra, 277 Conn. 656. Section
5.2.H.5 is the only provision in the regulations that
ostensibly encompasses the storage of commercial
vehicles as a principal use, as it specifically permits
trucking operations as a conditional principal use in
the BP zone.
With respect to the standards governing its applica-
tion, § 5.2.H.5 expressly requires ‘‘complete visual
screening of equipment’’ on the property.33 Section
5.2.H.5 further provides that owners of property in the
BP zone must obtain a special permit for a conditional
use from the commission before engaging in trucking
operations on the property. As our Supreme Court has
explained, ‘‘a specially permitted use is ordinarily
allowed in any existing zoning district, provided, of
course, that the site plan conforms to the regulations
governing special permits. Unlike a permitted use
wherein the commission has already made the determi-
nation that a particular use is appropriate in a particular
area, in reviewing a special permit application the com-
mission must examine the proposed site plan submitted
with the application and determine, inter alia, whether
it would be compatible with the zoning district and the
existing structures permitted in that zone as of right.
. . . The commission, therefore, must tailor its review
of each site plan accompanying a special permit applica-
tion to the particular zoning district in which the land-
owner seeks to develop.’’ Barberino Realty &
Development Corp. v. Planning & Zoning Commis-
sion, supra, 222 Conn. 620.
The regulations here contain detailed criteria that
govern special permit applications; see Wethersfield
Zoning Regs., art. VIII; as well as criteria specific to
the storage of commercial vehicles. See Wethersfield
Zoning Regs., art. III, § 3.5.5.34 Accordingly, the commis-
sion, in evaluating a request for a special permit pursu-
ant to § 5.2.H.5, must consider, inter alia, whether ‘‘the
location and size of the proposed use . . . will be in
harmony with the orderly development of the area and
compatible with other existing uses’’; Wethersfield Zon-
ing Regs., art. VIII, § 8.1.A; whether the proposed use
will ‘‘alter the essential characteristics of the area or
adversely affect property value in the neighborhood’’;
Wethersfield Zoning Regs., art. VIII, § 8.2.B; whether
the property in question has suitable access and parking
to accommodate the proposed use; Wethersfield Zoning
Regs., art. VIII, § 8.4; and whether the proposed use will
‘‘have any detrimental effects upon the public health,
safety, welfare, convenience, or property values.’’ Weth-
ersfield Zoning Regs., art. VIII, § 8.8.A.
It nevertheless remains that the commission’s
‘‘[r]eview of a special permit application is inherently
fact-specific, requiring an examination of the particular
circumstances of the precise site for which the special
permit is sought and the characteristics of the specific
neighborhood in which the proposed [use] would be
[made].’’ Municipal Funding, LLC v. Zoning Board of
Appeals, 270 Conn. 447, 457, 853 A.2d 511 (2004). That
‘‘fact-specific inquiry makes the [commission’s]
approval of a similar facility at another site . . . legally
irrelevant.’’ Id. For that reason, our Supreme Court has
instructed that a commission ‘‘must be afforded’’ addi-
tional leeway ‘‘in the wording of the regulations’’ when
a vagueness challenge to a specially permitted use regu-
lation is raised. Barberino Realty & Development Corp.
v. Planning & Zoning Commission, supra, 222 Conn.
620. Affording that leeway, we conclude that § 5.2.H.5
provided the defendant with adequate notice of the
standards utilized to evaluate a special permit request
for that conditional use.
D
CONCLUSION
In light of the foregoing, and making every presump-
tion in favor of its validity, we conclude the defendant
has not met its burden of demonstrating beyond all
reasonable doubt that § 5.2.H.5, as applied to the spe-
cific facts of this case, clearly and unequivocally is
impermissibly vague. See Graff v. Zoning Board of
Appeals, supra, 277 Conn. 672. Section 5.2.H.5 suffi-
ciently apprises persons of ordinary intelligence that
the storage of commercial vehicles by trucking compa-
nies as a principal use of property in the BP zone
requires a special permit from the commission.
IV
The defendant also claims that the court improperly
(1) interpreted § 5.2.H.5 and (2) substituted its interpre-
tation for that of the commission in so doing. We do
not agree.
The defendant’s first claim does not merit extensive
discussion. In its decision, the court accorded the
phrase ‘‘trucking or freight operations’’ its ordinary
meaning, as gleaned from definitions contained in our
General Statutes and dictionaries. The court’s construc-
tion fully comports with that set forth in part III B of
this opinion.
Moreover, the court’s construction is consistent with
the apparent intent of the commission in enacting
§ 5.2.H.5. See Wood v. Zoning Board of Appeals, 258
Conn. 691, 699, 784 A.2d 354 (2001) (‘‘in construing
regulations, our function is to determine the expressed
legislative intent’’). The explicitly permissive nature of
the regulations; see part III A of this opinion; demon-
strates that the commission, in enacting those regula-
tions, intended to confine the principal uses of property
in the BP zone to those specified in § 5.2. Furthermore,
the fact that the commission classified trucking opera-
tions conducted in the BP zone as a ‘‘conditional use’’
requiring special permit approval from the commission
indicates that it wanted to retain an additional degree
of oversight and control over such activities, consistent
with the primary aim of zoning, which ‘‘is to promote
the health, safety, welfare and prosperity of the commu-
nity.’’ Langbein v. Board of Zoning Appeals, 135 Conn.
575, 580, 67 A.2d 5 (1949); see also Smith v. Planning &
Zoning Board, 3 Conn. App. 550, 554, 490 A.2d 539
(1985) (‘‘purpose of zoning is to regulate property uses
. . . in a manner to advance the public welfare’’), aff’d,
203 Conn. 317, 524 A.2d 1128 (1987). That concern for
the public welfare also is reflected in the fact that
§ 5.2.H.5 expressly requires ‘‘complete visual screening
of equipment’’ associated with such trucking opera-
tions. We reiterate that § 5.2.H.5 is a subsection of the
section of the regulations that outlines permissible
‘‘Industrial and Storage Uses.’’ (Emphasis added.) Weth-
ersfield Zoning Regs., art. V, § 5.2.H. Mindful that zoning
regulations ‘‘are to be construed as a whole’’; Smith
v. Zoning Board of Appeals, supra, 227 Conn. 91; we
conclude that the court properly interpreted the term
trucking operations, as it is used in § 5.2.H.5, to encom-
pass the storage of commercial vehicles by trucking
companies on property located in the BP zone.
We likewise find no merit to the defendant’s con-
tention that the court improperly substituted its inter-
pretation of § 5.2.H.5 for that of the commission.
Although a municipal planning and zoning commission
often interprets undefined terms in the first instance,
it is well established that the proper construction of a
zoning regulation presents a question of law over which
a court exercises plenary review. Hasychak v. Zoning
Board of Appeals, 296 Conn. 434, 442, 994 A.2d 1270
(2010). For that reason, our courts are not bound by
the legal interpretation of a regulation provided by a
planning and zoning commission or zoning board of
appeals.35 See Jalowiec Realty Associates, L.P. v. Plan-
ning & Zoning Commission, 278 Conn. 408, 414, 898
A.2d 157 (2006); Northeast Parking, Inc. v. Planning &
Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d
797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269
(1998). Because the present case involves a question
as to the proper construction of § 5.2.H.5, the trial court
was obligated to conduct a plenary review thereof. The
defendant’s claim, therefore, is baseless.
V
The defendant next argues that the court abused its
discretion in granting a permanent injunction in favor
of the plaintiffs. We disagree.
‘‘A prayer for injunctive relief is addressed to the
sound discretion of the court and the court’s ruling
can be reviewed only for the purpose of determining
whether the decision was based on an erroneous state-
ment of law or an abuse of discretion.’’ (Internal quota-
tion marks omitted.) Maritime Ventures, LLC v.
Norwalk, 277 Conn. 800, 807, 894 A.2d 946 (2006). ‘‘In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling. . . .
Reversal is required only [when] an abuse of discretion
is manifest or [when] injustice appears to have been
done.’’ (Internal quotation marks omitted.) Weiss v.
Smulders, 313 Conn. 227, 261, 96 A.3d 1175 (2014).
The plaintiffs in the present case brought this action
pursuant to § 8-12. As our Supreme Court has explained,
when an injunction is sought pursuant to that statute,
‘‘the town is relieved of the normal burden of proving
irreparable harm and the lack of an adequate remedy
at law because § 8-12 by implication assumes that no
adequate alternative remedy exists and that the injury
was irreparable. . . . The town need prove only that
the [regulations] were violated.’’ (Citation omitted.) Gel-
inas v. West Hartford, 225 Conn. 575, 588, 626 A.2d
259 (1993).
At trial, the court was presented with testimonial,
documentary, and photographic evidence indicating
that commercial vehicles were being stored by trucking
companies on the defendant’s property in contravention
of the regulations. The court, as arbiter of credibility,
was free to credit that evidence. See Cadle Co. v. D’Ad-
dario, 268 Conn. 441, 462, 844 A.2d 836 (2004) (‘‘In a
case tried before a court, the trial judge is the sole
arbiter of the credibility of the witnesses and the weight
to be given specific testimony. . . . It is within the
province of the trial court, as the fact finder, to weigh
the evidence presented and determine the credibility
and effect to be given the evidence.’’ [Citation omitted;
internal quotation marks omitted.]). In granting injunc-
tive relief, the court ordered an immediate cease to ‘‘all
trucking operations’’ that are (1) ‘‘not associated with
a specific tenant business use on the property’’ and (2)
‘‘conducted without a special permit . . . .’’ The court
further retained jurisdiction ‘‘[t]o the extent there is a
question on an accessory use’’ with respect to particular
vehicles on the property. In the present case, we cannot
say that the court abused its discretion in so doing.
Our review of the record convinces us that the court
properly exercised its discretion in fashioning perma-
nent injunctive relief in favor of the plaintiffs.
VI
The defendant also claims that the injunction ‘‘lacks
sufficient clarity and definiteness.’’ That claim is predi-
cated on a mischaracterization of the actual wording
of the court’s decision. In its principal appellate brief,
the defendant misquotes that decision to state: ‘‘ ‘If [the
defendant] wishes to conduct such trucking or freight
operations the defendant must first apply for and
receive a special permit to do so.’ ’’ (Emphasis added.)
The defendant then argues that the injunction ‘‘was
conditional on a state of mind that was contradicted
by . . . testimony [that] indicated that the defendant
‘did not wish to conduct trucking or freight opera-
tions’ . . . .’’
Contrary to the defendant’s contention, it remains
that the salient portion of the court’s memorandum of
decision states: ‘‘[T]he defendant must comply with the
town’s regulations. If [the defendant] seeks to conduct
such trucking and freight operations on the property,
it must first obtain a special permit to do so . . . .’’
(Emphasis added.) By its plain terms, that order
informed the defendant that it must obtain a special
permit in accordance with the regulations in order to
conduct trucking or freight operations on its property
as a principal use. The court’s order thus was suffi-
ciently clear and definite in its terms. See Castonguay
v. Plourde, 46 Conn. App. 251, 268–69, 699 A.2d 226,
cert. denied, 243 Conn. 931, 701 A.2d 660 (1997).
VII
The defendant also challenges the court’s imposition
of a ‘‘fine of $50 per day from January 22, 2016, to the
date of this [April 20, 2017] order’’ pursuant to § 8-12.
The defendant claims that the court abused its discre-
tion in imposing that fine because the plaintiffs failed
to prove a public nuisance caused by the storage of
commercial vehicles on the property. The defendant
alternatively argues that any daily fine should be
imposed from the April 20, 2017 date of the court’s
decision. We do not agree.
Section 8-12 provides in relevant part that ‘‘[t]he
owner . . . of any . . . premises where a violation of
any provision of such regulations has been committed
or exists . . . shall be fined not less than ten dollars
or more than one hundred dollars for each day that such
violation continues . . . .’’ That statute ‘‘authorizes the
trial court to exercise its discretion in determining
whether to award daily fines.’’ Monroe v. Renz, 46 Conn.
App. 5, 14, 698 A.2d 328 (1997). This court’s review of
a trial court’s decision to impose a daily fine pursuant to
§ 8-12 is governed by the abuse of discretion standard.
Stamford v. Stephenson, supra, 78 Conn. App. 824.
We reject the defendant’s assertion that proof of a
public nuisance is a prerequisite to the imposition of
such fines.36 Section 8-12 does not contain any such
requirement and the defendant has provided no author-
ity mandating such proof. As this court has observed,
‘‘[t]he purpose of § 8-12 is to provide a means to enforce
the zoning regulations and to prevent an unlawful use’’
of property; id., 826; and the imposition of fines under
that statute is intended to deter violations of the zoning
regulations. Monroe v. Renz, supra, 46 Conn. App. 14.
To obtain relief under § 8-12, the plaintiffs here needed
to ‘‘prove only that the [regulations] were violated.’’
Gelinas v. West Hartford, supra, 225 Conn. 588. When
that burden is met, the imposition of a daily fine is left
to the sound discretion of the trial court. Monroe v.
Renz, supra, 14. We perceive no abuse of discretion in
the present case.
The defendant alternatively argues that the daily fine
imposed by the court should not begin to accrue until
the date of the trial court’s decision in this case. We
disagree. In the order sent to the defendant on Novem-
ber 18, 2015, LaFountain informed the defendant that,
in his view, the existing use of the property violated
the regulations—specifically, trucking operations that
were not accessory to a principal use and for which a
special permit had not been secured. The defendant
was free to appeal that determination to the board,
which it initially did on December 2, 2015. The defen-
dant withdrew that administrative appeal on January
22, 2016. In its memorandum of decision, the court
imposed a daily fine from that date until ‘‘the [April 20,
2017] date of this order . . . .’’ As this court has
observed, the trial court ‘‘has discretion to impose
[daily] fines, as the circumstances require.’’ Stamford
v. Stephenson, supra, 78 Conn. App. 826. We conclude
that the court did not abuse its discretion in assessing
a daily fine for that time period.
VIII
The defendant next claims that the court abused its
discretion in awarding costs and attorney’s fees pursu-
ant to § 8-12 without making a finding that it wilfully
violated the zoning regulations. We disagree.
Section 8-12 provides in relevant part: ‘‘If the court
renders judgment for such municipality and finds that
the violation was wilful, the court shall allow such
municipality its costs, together with reasonable attor-
ney’s fees to be taxed by the court. . . .’’ Like daily
fines, the imposition of costs and attorney’s fees under
§ 8-12 is entrusted to the discretion of the trial court.
Stamford v. Stephenson, supra, 78 Conn. App. 824. As
this court has explained, ‘‘the use of ‘shall’ in § 8-12
does not create a mandatory duty to impose fines. . . .
Rather, a court has discretion to impose such fines, as
the circumstances require. . . . [T]he case law allows
the court to use its discretion to impose fines and to
award attorney’s fees.’’ (Citations omitted.) Id., 825–26.
In their complaint, the plaintiffs alleged ongoing vio-
lations of the regulations on the defendant’s property
in violation of the order. After noting that the action
was brought pursuant to § 8-12, the plaintiffs requested,
inter alia, an award of ‘‘costs and reasonable attorney’s
fees’’ pursuant to that statute. Such an award requires
a finding ‘‘that the violation was wilful . . . .’’ General
Statutes § 8-12; see also Monroe v. Renz, supra, 46 Conn.
App. 11–13.37
In its memorandum of decision, the court noted that
a decision to grant or deny a request for injunctive relief
must ‘‘take into account the gravity and willfulness of
the violation . . . .’’ (Internal quotation marks omit-
ted.) The court also stated that ‘‘[a] wilful act is one
done intentionally or with reckless disregard of the
consequences of one’s conduct. . . . Willfulness in vio-
lating a [zoning regulation] implies not so much malevo-
lent design as action with knowledge that one’s acts
are proscribed or with careless disregard for their law-
fulness or unlawfulness.’’ (Internal quotation marks
omitted.) The court then made a series of findings
regarding the defendant’s conduct subsequent to the
issuance of the order instructing the defendant to cease
and desist all trucking operations on the property. The
court found that ‘‘[t]he town was concerned with the
trucking operations on the property, and the evidence
indicates the defendant willingly allowed such a use.’’
(Emphasis added.) The court further found that ‘‘Tar-
taglia’s purported lack of knowledge in his testimony
about the actual operations or the specific tenants stor-
ing trucks was not persuasive. . . . Notwithstanding
Tartaglia’s protestations . . . there is no evidence that
weighs in the defendant’s favor.’’ In light of those find-
ings, the court, in fashioning relief, awarded the plain-
tiffs ‘‘costs and attorney’s fees to be established at a
hearing at a later date.’’
This case thus is one in which the trial court was
presented with a request for an award of costs and
attorney’s fees that required a finding of wilfulness.
In its decision, the court first set forth the applicable
standard for wilfulness in the zoning violation context
and then made a finding that the defendant ‘‘willingly’’
allowed a use of its property in contravention of the
regulations after the order was issued, noting that there
was ‘‘no evidence that weighs in the defendant’s favor.’’
Given those findings, we conclude that the court did
not abuse its discretion in awarding costs and attorney’s
fees to the plaintiffs pursuant to § 8-12.
IX
As a final matter, the defendant challenges the court’s
finding of contempt. It raises two distinct claims in this
regard. First, the defendant claims that the court lacked
subject matter jurisdiction over the plaintiffs’ motion
for contempt. Second, the defendant claims that the
motion for contempt was premature and, thus, improp-
erly granted.38 We are not persuaded.
Before considering the defendant’s specific claims,
we note certain fundamental precepts. ‘‘It has long been
settled that a trial court has the authority to enforce
its own orders. This authority arises from the common
law and is inherent in the court’s function as a tribunal
with the power to decide disputes. . . . The court’s
enforcement power is necessary to preserve its dignity
and to protect its proceedings. . . . A party to a court
proceeding must obey the court’s orders unless and
until they are modified or rescinded, and may not
engage in self-help by disobeying a court order to
achieve the party’s desired end.’’ (Citations omitted;
internal quotation marks omitted.) O’Brien v. O’Brien,
326 Conn. 81, 96–97, 161 A.3d 1236 (2017).
‘‘The court has an array of tools available to it to
enforce its orders, the most prominent being its con-
tempt power. . . . Our law recognizes two broad types
of contempt: criminal and civil. . . . Civil contempt
. . . is not punitive in nature but intended to coerce
future compliance with a court order, and the contem-
nor should be able to obtain release from the sanction
imposed by the court by compliance with the judicial
decree. . . . A civil contempt finding thus permits the
court to coerce compliance by imposing a conditional
penalty, often in the form of a fine or period of imprison-
ment, to be lifted if the noncompliant party chooses to
obey the court.’’ (Citations omitted; internal quotation
marks omitted.) Id., 97–98.
‘‘To impose contempt penalties . . . the trial court
must make a contempt finding, and this requires the
court to find that the offending party wilfully violated
the court’s order; failure to comply with an order, alone,
will not support a finding of contempt. . . . Rather, to
constitute contempt, a party’s conduct must be wilful.
. . . Whether a party’s violation was wilful depends on
the circumstances of the particular case and, ultimately,
is a factual question committed to the sound discretion
of the trial court. . . . Without a finding of wilfulness,
a trial court cannot find contempt and, it follows, cannot
impose contempt penalties.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 98–99; see also Bolat
v. Bolat, 182 Conn. App. 468, 480, 190 A.3d 96 (2018)
(factual findings of contempt and requisite wilfulness
both dependent on underlying facts and circum-
stances).
‘‘We review the court’s factual findings in the context
of a motion for contempt to determine whether they
are clearly erroneous. . . . A factual finding is clearly
erroneous when it is not supported by any evidence in
the record or when there is evidence to support it, but
the reviewing court is left with the definite and firm
conviction that a mistake has been made.’’ (Internal
quotation marks omitted.) Bolat v. Bolat, supra, 182
Conn. App. 479–80.
A
The defendant first raises a jurisdictional challenge
to the motion for contempt filed by the plaintiffs.
Because the present case involves indirect civil con-
tempt,39 the defendant argues that the constitutional
guarantees of due process ‘‘[seem] to require a separate
proceeding, with separate service’’ for the court to have
subject matter jurisdiction over the plaintiffs’ motion.
The defendant has provided this court with no author-
ity indicating that a court lacks subject matter jurisdic-
tion over a postjudgment motion for indirect civil
contempt unless a separate and distinct proceeding is
commenced in the Superior Court. Rather, the court’s
jurisdiction over such motions stems from its inherent
authority to enforce its orders. As our Supreme Court
has explained, ‘‘the trial court’s continuing jurisdiction
to effectuate prior judgments . . . is not separate from,
but, rather, derives from, its equitable authority to vindi-
cate judgments. . . . [S]uch equitable authority does
not derive from the trial court’s contempt power, but,
rather, from its inherent powers.’’ (Emphasis in origi-
nal.) AvalonBay Communities, Inc. v. Plan & Zoning
Commission, 260 Conn. 232, 241, 796 A.2d 1164 (2002);
see also Rozbicki v. Gisselbrecht, 152 Conn. App. 840,
846–47, 100 A.3d 909 (2014), cert. denied, 315 Conn.
922, 108 A.3d 1123 (2015). We therefore reject the defen-
dant’s claim that the court lacked subject matter juris-
diction over the plaintiffs’ postjudgment motion for
contempt.
With respect to service of process requirements, our
Supreme Court has recognized that ‘‘due process of law
. . . requires that one charged with contempt of court
be advised of the charges against him, have a reasonable
opportunity to meet them by way of defense or explana-
tion, have the right to be represented by counsel, and
have a chance to testify and call other witnesses in
his behalf, either by way of defense or explanation.’’
(Internal quotation marks omitted.) Cologne v. Westf-
arms Associates, 197 Conn. 141, 150, 496 A.2d 476
(1985). ‘‘Adjudication of a motion for civil contempt
. . . implicates these constitutional safeguards. . . .
[W]here the alleged contempt does not occur in the
presence of the court . . . process is required to bring
the party into court, and the acts or omissions constitut-
ing the offense are to be proved as in ordinary cases.’’
(Internal quotation marks omitted.) Alldred v. Alldred,
132 Conn. App. 430, 434–35, 31 A.3d 1185 (2011), appeal
dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). Accord-
ingly, this court has held that ‘‘a postjudgment motion
for contempt that is filed for the purpose of enforcing
an antecedent judicial order requires proper service of
process.’’ Id., 435.
Service of process implicates the personal jurisdic-
tion of the court. Id., 431. It is well established that ‘‘[a]
challenge to a court’s personal jurisdiction . . . is
waived if not raised by a motion to dismiss within thirty
days . . . .’’ Lostritto v. Community Action Agency of
New Haven, Inc., 269 Conn. 10, 32, 848 A.2d 418 (2004);
see also Practice Book § 10-32 (‘‘[a]ny claim of lack of
jurisdiction over the person or insufficiency of process
or insufficiency of service of process is waived if not
raised by a motion to dismiss’’). In the present case,
the plaintiffs filed their motion for contempt on May 4,
2017. The defendant thereafter did not file a timely a
motion to dismiss that contempt motion. Rather, the
defendant on May 11, 2017, filed an objection that
addressed the merits of the plaintiffs’ motion for con-
tempt. The court subsequently held a hearing on the
plaintiffs’ motion for contempt on July 6, 2017, at which
the defendant presented evidence, including the testi-
mony of Tartaglia. During closing arguments at that
hearing, the defendant’s counsel for the first time
moved to dismiss the plaintiffs’ motion due to allegedly
improper service of process.
In its memorandum of decision on the motion for
contempt, the court concluded that the defendant
‘‘clearly waived’’ that objection to the plaintiffs’ post-
judgment motion for contempt because it did not file
a timely motion to dismiss, as required by Practice Book
§ 10-30 (b), and did not file a supporting memorandum
of law, as required by Practice Book § 10-30 (c).40 We
agree. Furthermore, by filing an objection to the plain-
tiffs’ motion that was accompanied by a memorandum
of law and then fully participating in the contempt hear-
ing, the defendant submitted to the jurisdiction of the
court. See Narayan v. Narayan, 305 Conn. 394, 402,
46 A.3d 90 (2012) (personal jurisdiction may be created
through consent). We therefore conclude that the court
properly denied the defendant’s untimely motion to
dismiss.
B
The defendant also claims that the court improperly
granted the plaintiffs’ motion for contempt. Because it
allegedly had taken steps to secure compliance with
the regulations, the defendant argues that the plaintiffs’
filing of the motion was premature. Once again, we
disagree with the defendant.
We begin by noting that it is ‘‘within the equitable
powers of the trial court to effectuate its prior judgment
at any time, regardless of whether the noncompliant
party [is] in contempt.’’ (Emphasis added; internal quo-
tation marks omitted.) AvalonBay Communities, Inc.
v. Plan & Zoning Commission, supra, 260 Conn. 244.
It is undisputed that the defendant did not request a
discretionary stay of the court’s order pursuant to Prac-
tice Book § 61-12 during the pendency of this appeal.
For that reason, the plaintiffs were entitled to file their
motion for contempt any time after the permanent
injunction was issued. The defendant has provided no
legal authority to the contrary.
We therefore turn to the substance of the defendant’s
claim that the court improperly found it in contempt.
The evidence adduced at the July 6, 2017 contempt
hearing substantiates the court’s finding that the zoning
violations that gave rise to this enforcement action ‘‘still
exist’’ on the property. LaFountain testified that he had
inspected the property on four separate occasions over
the course of more than two months. Each time, he
observed numerous commercial vehicles stored in the
rear lot of the property.41 During those inspections,
LaFountain took photographs, twenty-one of which
were admitted into evidence at the contempt hearing.
Those photographs depict the storage of commercial
vehicles on the property that belong to trucking busi-
nesses. In light of his firsthand observation of the prop-
erty in the months following the issuance of the
permanent injunction, LaFountain testified that he
believed that a zoning violation continued to exist on
the property.
After the plaintiffs rested, the defendant called Tar-
taglia to the witness stand. In his testimony, Tartaglia
confirmed that trucking businesses continued to store
trucks on the property. Tartaglia also admitted that
the defendant had not applied for a special permit to
conduct trucking operations on the property. In addi-
tion, Tartaglia testified that he believed that the perma-
nent injunction issued by the court months earlier was
‘‘unjust, unfair, inequitable and an affront,’’ stating
‘‘that’s my opinion and I’m entitled to it.’’ He neverthe-
less described certain steps he had taken that allegedly
were intended to secure compliance with the regula-
tions. Specifically, Tartaglia testified that he had served
notices to quit on three tenants due to violations of
the terms of their leases; copies of those notices were
admitted into evidence. At the same time, Tartaglia
professed ignorance when asked whether the defendant
subsequently had commenced eviction proceedings in
the Superior Court against those tenants. Tartaglia also
testified that he had provided those tenants with
instructions on how to apply for a special permit with
the town.42
In addition, Tartaglia acknowledged that the lease
agreements with those tenants, which were submitted
into evidence at the contempt hearing, authorized the
defendant to immediately revoke parking privileges and
remove a tenant’s vehicles from the property at any
time.43 Furthermore, the defendant submitted into evi-
dence a copy of the letter that it sent to Stefak shortly
after the permanent injunction was granted, in which
Tartaglia informed Stefak that the defendant was can-
celling his lease and ‘‘any parking privileges are immedi-
ately revoked.’’ On cross-examination, Tartaglia was
asked if he had ‘‘attempt[ed] to lock the gate’’ or taken
any other steps to ‘‘keep the box trucks out of’’ the
property. Tartaglia admitted that he had ‘‘done no such
thing.’’ He also stated that ‘‘ if someone in this [court-
room] thinks that we should go there and club them
over the head, or throw [the tenants] out, I’m not [going
to] do that because that’s not what a businessman would
do; and I wouldn’t do that to any other person, especially
decent people who’ve done no harm. And if that doesn’t
accommodate the town, I’m very sorry. But I can’t do
more than that because it would be wrong. Of course,
it would be improper. And it’s uncalled for in this case.
Uncalled for. And if I’m acting from decency and proper
business judgment and moving as quick as we can, and
that’s not quick enough for someone in this [court-
room], then I think someone in this [courtroom] says
that I was unreasonable.’’44
The defendant nonetheless claims that, in light of
the fact that Tartaglia sent eviction notices and special
permit application instructions to certain tenants, the
court improperly granted the plaintiffs’ motion for con-
tempt. At its essence, the defendant’s claim is that it
operated under a good faith belief that such efforts
constituted compliance with the court’s order, which
precludes a finding that it wilfully violated that order.
The court’s order plainly states that ‘‘the defendant
must comply with the town’s regulations. If [the defen-
dant] seeks to conduct such trucking and freight opera-
tions on the property, it must first obtain a special
permit to do so. Hence, all trucking operations not
associated with a specific tenant business use on the
property or any trucking and freight operations being
conducted without a special permit must immediately
cease.’’ (Footnote omitted.) Like the order at issue in
Gill v. Shimelman, 180 Conn. 568, 571, 430 A.2d 1292
(1980), the injunction here ‘‘ordered the company and
its owners, not the tenants, to stop’’ the prohibited
activity on its property. It is undisputed that the defen-
dant neither applied for nor received a special permit
to conduct trucking operations on its property.
The only question, then, is whether a good faith dis-
pute as to the mandate of the court’s order precludes
a finding of wilful contempt. See Sablosky v. Sablosky,
258 Conn. 713, 718, 784 A.2d 890 (2001). Whether a good
faith dispute exists depends on the circumstances of
the particular case and, thus, is a factual question ‘‘com-
mitted to the sound discretion of the trial court.’’
O’Brien v. O’Brien, supra, 326 Conn. 98. Our review of
that factual determination is governed by the clearly
erroneous standard of review; Bolat v. Bolat, supra,
182 Conn. App. 479–80; a ‘‘deferential standard’’ under
which reviewing courts must not ‘‘examine the record to
determine whether the trier of fact could have reached
a conclusion other than the one reached. Rather, we
focus on the conclusion of the trial court, as well as
the method by which it arrived at that conclusion, to
determine whether it is legally correct and factually
supported. . . . On appeal, we do not retry the facts
. . . .’’ (Internal quotation marks omitted.) Marchesi
v. Board of Selectmen, 328 Conn. 615, 643, 181 A.3d
531 (2018).
The trial court in the present case rejected the defen-
dant’s purported good faith understanding of its order.
As it found in its memorandum of decision: ‘‘[T]he testi-
mony and the evidence is clear that the subject viola-
tions still exist. Indeed, many of the newest pictures of
the property submitted into evidence by the plaintiffs
show the same type of—or perhaps the exact same—
trucks shown in pictures submitted into evidence at
trial. . . . Tartaglia does not dispute that the trucks
are still parked on the property. Instead, he attempts
to separate his responsibilities from that of his tenants
and to individualize the truck owners as the offending
violators. These disingenuous attempts to avoid compli-
ance were and are rejected. The defendant has two
choices: it can either conduct its operations in compli-
ance with the zoning regulations—which includes its
rental policies as to [trucking companies]—or cease its
operations that violate the regulations. Despite Tartag-
lia’s protestations, the defendant has the ability to com-
ply.’’ The court thus granted the plaintiffs’ motion for
contempt.
In finding that the defendant’s failure to comply with
its order was not excused by its ‘‘disingenuous attempts
to avoid compliance’’ and that a finding of contempt
was therefore warranted, the court necessarily con-
cluded that the defendant’s violation of the court order
was wilful.45 On our review of the record before us, we
decline to disturb that factual determination. Accord-
ingly, the defendant’s claim must fail.
The appeal is dismissed with respect to the defen-
dant’s challenge to the standing of LaFountain. The
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
For clarity, in this opinion we refer to the town of Wethersfield and
LaFountain collectively as the plaintiffs and individually by name.
2
As the trial court noted in its memorandum of decision, ‘‘[e]vidently, the
violation was discovered as a result of a due diligence inquiry by a prospec-
tive buyer checking on the zoning compliance status of the property. . . .
LaFountain investigated, took a series of photographs . . . and discovered
the alleged violations. Consequently, he refused to provide the routine letter
of compliance.’’ (Citation omitted.)
3
In the application that it submitted to the board, the defendant alleged
in relevant part:
‘‘1. [The order] is impermissibly vague, lacks specificity and is not based
on sufficient standards, because, among other reasons; the phrase ‘trucking
and freight operations’ as used in the [o]rder is not . . . defined in the
[regulations] nor in [t]he [o]rder.
‘‘2. The [o]rder denies and violates the requirements of substantive and
procedural due process of law under the United States Constitution and
the Constitution of the State of Connecticut and other federal and state laws.
‘‘3. The [o]rder denies and violates the property owner’s right of equal
protection law under the United States Constitution and the Constitution
of the State of Connecticut and other federal and state laws.
‘‘4. The [o]rder seeks to enforce changes in the [regulations] ex post
facto and in violation of the [defendant’s] rights under the United States
Constitution and the Constitution of the State of Connecticut and other
federal and state laws.
‘‘5. As stated in the [o]rder, the use and occupancy of the property for,
among other things, commercial truck parking is a permissible accessory
use. Nevertheless, to the extent that the [o]rder alleges otherwise, the use
and occupancy of the property for, among other things, commercial truck
parking by owner and its tenants, is a prior, non-conforming use which may
not be revoked or limited by the [o]rder . . . .
‘‘6. The law alleged to have been violated in the [o]rder is an illegal
application of ‘spot zoning,’ otherwise not made under or inconsistent with
the applicable comprehensive plan, otherwise abusive and violative of prop-
erty owner’s rights.
‘‘7. The [o]rder is not based on substantial evidence.
‘‘8. The [o]rder is otherwise not in conformance with law, an abuse of
discretion and made without and/or in excess of, legal authority.
‘‘9. The Zoning Regulation alleged to have been violated in the [o]rder
was not instituted in accordance with Connecticut [l]aw and is therefore
void and unenforceable.’’ (Emphasis omitted.)
4
General Statutes § 8-12 provides in relevant part: ‘‘If any . . . land has
been used, in violation of any provision . . . of any bylaw, ordinance, rule
or regulation made under authority conferred hereby, any official having
jurisdiction, in addition to other remedies, may institute an action or proceed-
ing to prevent such unlawful . . . use or to restrain, correct or abate such
violation . . . .’’
5
Section 5.2.H.5 of the regulations provides that ‘‘[t]rucking or freight
operations with complete visual screening of equipment and materials’’ may
only be conducted as a ‘‘Conditional Use’’ in the BP zone after a special
permit is approved by the commission. It is undisputed that no such special
permit was secured for the property.
6
‘‘Accessory Use’’ is defined in § 2.3.A of the regulations as ‘‘[a] use
subordinate and customarily incident to a principal use on the same lot in
compliance with the same standards and procedures that govern the princi-
pal use of a property.’’ Pursuant to § 5.3.A.1 and A.2 of the regulations,
‘‘Parking . . . for the principal use’’ and ‘‘Parking of Commercial Vehicles’’
are both permissible accessory uses in the BP zone.
7
The defendant alleged the special defenses of (1) existing nonconforming
use; (2) laches; (3) selective enforcement; (4) ‘‘balancing of the equities’’
with respect to ‘‘the defendant being allowed to continue its present use of
the [property] without any injunction’’; (5) ‘‘impermissibly vague [zoning]
regulation’’; and (6) ‘‘unconstitutionality of the [order].’’ With respect to
the last defense, the defendant alleged that the issuance of the order by
LaFountain allegedly violated its federal and state constitutional rights to
substantive due process, procedural due process, and equal protection under
the law. In addition, the defendant claimed that the order was ‘‘impermissibly
vague’’; that it sought ‘‘to enforce changes in the [regulations] ex post facto’’;
that it was ‘‘not based on specific substantial evidence’’; and that it was
‘‘made with malice, recklessness and or negligence of such a degree that it
is not in conformance with substantive and procedural due process . . .
and is otherwise an unconstitutional abuse of discretion . . . .’’ Many of
those defenses previously were raised in the defendant’s December 2, 2015
appeal to the board. See footnote 3 of this opinion.
8
The vehicles in those photographs primarily are box trucks and tractor
trailers, which are classified as commercial vehicles under § 2.3.C of the
regulations. See footnote 16 of this opinion. As this court has observed, ‘‘[a]
box truck is a utility truck with a box type body . . . .’’ Ventura v. East
Haven, 170 Conn. App. 388, 391 n.3, 154 A.3d 1020, cert. granted on other
grounds, 325 Conn. 905, 156 A.3d 537 (2017). A tractor trailer ‘‘is a vehicle
with a cab and a detachable trailer.’’ Holmes v. United States, United States
District Court, Docket No. C 08-5619 PJH, 2011 WL 1791596, *2 (N.D. Cal.
May 10, 2011); see also General Statutes (Rev. to 2015) § 14-1 (93), as
amended by No. 15-46, § 1, of the 2015 Public Acts (defining ‘‘[t]ractor-trailer
unit’’ as ‘‘a combination of a tractor and a trailer or a combination of a
tractor and a semitrailer’’).
9
In her December 18, 2015 complaint, which was admitted into evidence
as a full exhibit, Lynn Burdick stated: ‘‘I am writing to identify my concern
over the trailer trucks that have been parked [on the property] for the past
several months. I am aware the landlord has the opportunity to rent this
area to bring in revenue to his company but this is inappropriate and unac-
ceptable to the homeowners at the [condominium complex]. The [rear]
parking lot is opposite our condominium complex and some of the owners
have to face large tractor trailers coming and going at all hours of the day
and night. This is a residential area housing 172 units which was built in
1985. Until a few years ago there [was] a line of trees which were a buffer
between these two properties. The landlord cut those trees down a few
years ago and as a result these condominiums are now directly exposed to
this view and noise ongoing. I would appreciate anything you can do to
assist in eliminating this activity on this property. Thank you.’’
10
One example of Tartaglia’s ‘‘tag system’’ is reflected in the October 1,
2013 ‘‘Month To Month Equipment—Parking Lot Use License’’ agreement
signed by Tartaglia and Adisa Jauzovic that was admitted into evidence at
trial. That agreement states that Jauzovic shall receive seven tags to display
on vehicles stored in the ‘‘rear parking lot’’ of the property in exchange for
a ‘‘storage fee’’ of $600 per month. It further provides that ‘‘[u]nder no
circumstances is the [l]icensee permitted to enter any building on the [p]rop-
erty or to use or avail himself of any utility or other facility appurtenant to
the [p]roperty . . . without the express written permission of [Tartaglia].’’
11
That document also features a handwritten notation on the upper right
corner of its first page, which states ‘‘3 Trucks / M&A permitted.’’
12
With respect to such tenants, LaFountain testified that if the ‘‘principal
use’’ of the property was ‘‘the trucking and freight operation,’’ the tenant
could not claim that the parking of commercial vehicles was an accessory
use of an industrial or office use on the property.
13
That testimony is consistent with the May 14, 2014 letter that Tartaglia
sent to the town’s building official, which was admitted into evidence. In
that letter, Tartaglia requested ‘‘that no civil official of the [town] enter upon
the property . . . without warrant and due process of law.’’
14
As an example, Tartaglia testified that a ‘‘trucking operation or the
freight operation involves something active. It requires an intermodal facility
. . . . The global partners oil terminal facility on the Connecticut River in
Wethersfield could be considered a trucking and freight operation because
it has massive oil tanks. Trucks are sent in to pick up oil and take it away.’’
15
Section 2.2 of the regulations is titled ‘‘Word Usage.’’ Section 2.2.B
provides: ‘‘For the purpose of interpretation and enforcement of these regula-
tions, certain words not defined in this Section shall be defined by the
[commission] after consulting:
‘‘1. The Building Code.
‘‘2. The Illustrated Book of Development Definitions.
‘‘3. The Connecticut General Statutes.
‘‘4. Black’s Law Dictionary.
‘‘5. Webster’s Third New International Dictionary.’’
16
Section 2.3.C defines the term ‘‘commercial vehicle’’ as ‘‘[a]ny vehicle
or equipment regularly used to carry, deliver, handle or move goods in the
conduct of a business, commerce, profession, or trade’’ that features at least
two of the nine ‘‘characteristics’’ specified therein. That regulation then
states in relevant part: ‘‘The following types of vehicles when regularly
used to carry, deliver, handle or move goods in the conduct of a business,
commerce, profession, or trade shall all be considered commercial vehicles
. . . cargo vans, box trucks, flat bed or stake bed trucks, buses, semi trailers,
tractor trailers . . . .’’
17
We reiterate that the regulations define ‘‘accessory use’’ as ‘‘[a] use
subordinate and customarily incident to a principal use on the same lot in
compliance with the same standards and procedures that govern the princi-
pal use of a property.’’ Wethersfield Zoning Regs., art. II, § 2.3.A.
18
In its June 23, 2016 answer, the defendant left the plaintiffs to their
burden of proof with respect to that allegation.
19
In its June 23, 2016 answer, the defendant denied the truth of those alle-
gations.
20
‘‘It is well established that a zoning regulation . . . is a municipal legisla-
tive enactment.’’ Brenmor Properties, LLC v. Planning & Zoning Commis-
sion, 162 Conn. App. 678, 699, 136 A.3d 24 (2016), aff’d, 326 Conn. 55, 161
A.3d 545 (2017).
21
In so doing, our Supreme Court emphasized that ‘‘if the plaintiff had
appealed to the board, and if the board had decided in the plaintiff’s favor,
she would not have needed to file the present [declaratory judgment] action.
If the board had decided the case against the plaintiff, the Superior Court
would be presented with the reasons for the board’s decision and would
have been able to make an informed decision as to whether the board had
acted arbitrarily.’’ Piquet v. Chester, supra, 306 Conn. 187.
22
See footnote 15 of this opinion.
23
General Statutes § 8-8 (b) provides in relevant part: ‘‘[A]ny person
aggrieved by any decision of a [municipal zoning board of appeals] . . .
may take an appeal to the superior court for the judicial district in which
the municipality is located . . . .’’
24
A specially permitted use is one which requires property owners to
secure special permit approval from the applicable land use agency, which
ordinarily is the municipal planning and zoning commission. See Barberino
Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn.
607, 620, 610 A.2d 1205 (1992). ‘‘[T]he special permit process is, in fact,
discretionary. . . . [G]eneral considerations such as public health, safety
and welfare, which are enumerated in zoning regulations, may be the basis
for the denial of a special permit.’’ (Citation omitted.) Irwin v. Planning &
Zoning Commission, 244 Conn. 619, 626–27, 711 A.2d 675 (1998).
25
Titled ‘‘Prohibited If Not Clearly Permitted,’’ § 2.1.A of the regulations
provides: ‘‘1. Use of land, buildings or structures not clearly permitted in
the various zoning districts is prohibited. 2. Activities not clearly permitted
in the [r]egulations are prohibited.’’
26
It is undisputed that the regulations at issue were in effect when the
defendant acquired the property from a predecessor company, 61 Arrow
Road, LLC, in September, 2014. Tartaglia served as the manager of both 61
Arrow Road, LLC. and the defendant.
27
Although § 6.2 also concerns parking, that section pertains to the ade-
quacy of parking spaces on a given property and the specifications thereof.
That section does not authorize the parking or storage of commercial vehi-
cles as a principal or accessory use.
28
Section 3.5.5.B of the regulations provides in relevant part:
‘‘1. The Board may require that commercial vehicles approved under this
subsection shall be parked in a location that will be screened from view
along the nearest property line or from a public right-of-way with appropriate
vegetative buffering, fencing, earthen berms or a combination thereof.
‘‘2. In considering an application for a commercial vehicle, the Board shall
consider such factors as:
‘‘a. the proposed method of screening,
‘‘b. proximity to adjacent lots and buildings,
‘‘c. the size and characteristics of the vehicle,
‘‘d. the intended use,
‘‘e. the hours of operation of the vehicle,
‘‘f. other vehicles on the property and,
‘‘g. the character of the neighborhood.
‘‘3. The Board may attach reasonable restrictions on any [special permit]
approved under these regulations in order to maintain neighborhood residen-
tial character.
‘‘4. All applications for a [special permit] shall be accompanied by:
‘‘a. a detailed description of the vehicle on a form provided by the Town
that shall include: gross vehicle weight, height, total length, box length,
wheelbase, model and make.
‘‘b. a color photograph of the vehicle and,
‘‘c. a site plan identifying the proposed parking area for the vehicle,
proximity to adjacent buildings and any proposed screening.’’
29
In its April 20, 2017 memorandum of decision, the court stated: ‘‘While
some tenants did indeed have trucks as part of their operation—a legitimate
accessory use—this was not the focus of this [injunctive] action.’’ The court
further noted that ‘‘[t]o the extent there is a question on an accessory use,
this court will retain jurisdiction.’’
30
If the defendant is correct that § 5.2.H.5 is constitutionally infirm and,
hence, inapplicable to its property, then no parking and storage of commer-
cial vehicles can transpire on the property as a principal use. We reiterate
that the regulations here are permissive in nature; as a result, only principal
uses specifically permitted under the regulations are allowed. See Wethers-
field Zoning Regs., art. II, § 2.1.A. As our Supreme Court has noted, ‘‘given
the town’s permissive zoning scheme, where all uses not specifically permit-
ted are deemed prohibited, in order for the [property owner] to be entitled
to [engage in the use of the property in question] at all, there must be some
language in the regulations permitting that activity.’’ (Emphasis in original.)
Graff v. Zoning Board of Appeals, supra, 277 Conn. 656. The defendant has
not identified any other provision of the regulations that specifically permits
the parking and storage of commercial vehicles on its property as a princi-
pal use.
31
Section 2.2.B of the regulations specifies Webster’s Third New Interna-
tional Dictionary as a preferred dictionary ‘‘[f]or the purpose of interpreta-
tion’’ of words that are not defined in the regulations.
32
For that reason, we find utterly unconvincing the defendant’s semantical
argument that the phrase ‘‘trucking or freight operations,’’ as used in
§ 5.2.H.5, applies only to ‘‘active’’ trucking operations. It is undisputed that
trucking businesses, such as Igor Transportation, LLC, and M&A Express
Transport, LLC, actively stored their commercial vehicles on the defendant’s
property. While it is true that ‘‘doubtful language [in a zoning regulation]
will be construed against rather than in favor of a [restriction]’’ (internal
quotation marks omitted) Kobyluck Bros., LLC v. Planning & Zoning Com-
mission, 167 Conn. App. 383, 392, 142 A.3d 1236, cert. denied, 323 Conn.
935, 151 A.3d 383 (2016); the natural and usual meaning of the language at
issue in this case is not in doubt.
33
That requirement mirrors the mandate of Wethersfield Zoning Regs.,
art. VIII, § 8.9.B, which requires consideration of whether a specially permit-
ted use proposed by a property owner ‘‘will provide adequate landscaping
and screening for the protection of abutting uses.’’ It is undisputed that the
abutting property north of the lot where commercial vehicles are stored is
used as a residential condominium complex.
34
See footnote 28 of this opinion.
35
Our Supreme Court has explained that ‘‘although [the] court is not bound
by a zoning board’s interpretation of its regulations, a board’s reasonable,
time-tested interpretation is given great weight.’’ Jalowiec Realty Associates,
L.P. v. Planning & Zoning Commission, 278 Conn. 408, 414, 898 A.2d 157
(2006); see also Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 604,
789 A.2d 478 (although not binding, ‘‘[i]f a board’s time-tested interpretation
of a regulation is reasonable . . . that interpretation should be accorded
great weight by the courts’’), cert. denied, 260 Conn. 901, 793 A.2d 1088
(2002). There is no indication in the record or assertion by the defendant
that § 5.2.H.5 is the subject of a time-tested interpretation.
36
We further reject the premise underlying the defendant’s argument, as
there is no indication in the court’s memorandum of decision that it found
that the plaintiffs failed to prove that the storage of commercial vehicles
on the property constituted a public nuisance, as alleged in the operative
complaint. If anything, that memorandum of decision reasonably can be
construed as containing an implicit finding of a public nuisance, as the court
(1) found that LaFountain had ‘‘received complaints about the parking of
trucks’’ on the property; (2) found that the town ‘‘was concerned with
trucking operations on the property, and the evidence indicates that the
defendant willingly allowed such a use’’; and (3) found that ‘‘there is no
evidence that weighs in the defendant’s favor.’’ Furthermore, no articulation
of the court’s decision was sought by the defendant with respect to that
issue. See Practice Book § 66-5; see also Brennan v. Brennan Associates,
316 Conn. 677, 705, 113 A.3d 957 (2015) (responsibility of appellant to ask
trial judge to rule on overlooked matter).
37
Because an award of costs and attorney’s fees pursuant to § 8-12 requires
proof of a wilful zoning violation, we reject the defendant’s ancillary con-
tention that the plaintiffs failed to properly allege in their complaint that
they were entitled to such an award. Inherent in the plaintiff’s request for
an award of costs and attorney’s fees pursuant to § 8-12 was the assertion
that the defendant had wilfully violated the regulations in question, as
detailed more specifically in paragraph 8 of the complaint.
38
The defendant also alleges that the plaintiffs’ failure to explicitly plead
an allegation of wilfulness ‘‘rendered the [contempt] proceeding defective.’’
The defendant has provided neither legal authority nor analysis to substanti-
ate that contention. We therefore decline to review that inadequately briefed
assertion. See Connecticut Light & Power Co. v. Dept. of Public Utility
Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (‘‘[a]nalysis, rather than
mere abstract assertion, is required in order to avoid abandoning an issue
by failure to brief the issue properly’’ [internal quotation marks omitted]).
39
‘‘Civil contempt may be either direct or indirect. Indirect contempt
concerns conduct occurring outside of the court’s presence.’’ Alldred v.
Alldred, 132 Conn. App. 430, 434 n.4, 31 A.3d 1185 (2011), appeal dismissed,
303 Conn. 926, 35 A.3d 1075 (2012).
40
Practice Book § 10-30 provides: ‘‘(a) A motion to dismiss shall be used
to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdic-
tion over the person; (3) insufficiency of process; and (4) insufficiency of
service of process.
‘‘(b) Any defendant, wishing to contest the court’s jurisdiction, shall do so
by filing a motion to dismiss within thirty days of the filing of an appearance.
‘‘(c) This motion shall always be filed with a supporting memorandum of
law and, where appropriate, with supporting affidavits as to facts not appar-
ent on the record.’’
41
For example, LaFountain testified that he observed ‘‘approximately fif-
teen to twenty box trucks’’ during his April 24, 2017 inspection of the
property.
42
At the contempt hearing, the court was presented with evidence that
those three tenants did, in fact, file special permit applications with the
commission. The record does not contain copies of the applications submit-
ted to the commission, nor does it contain any evidence of the public
hearings, deliberations, or formal decisions of the commission. Rather, the
court heard testimony that the special permit applications were denied by
the commission because they did not comply with certain requirements in
the regulations. In its memorandum of decision, the court emphasized that
‘‘[t]he record does not indicate that the three applications would satisfy
the zoning regulations,’’ and the defendant has not argued otherwise in
this appeal.
43
For example, the lease agreement with Stefak that was admitted into
evidence states in relevant part: ‘‘Notwithstanding anything in this lease to
the contrary—any default under this lease will result in a lock out from the
space and the building. Parking is a privilege, not a right and may be
terminated at any time by Landlord in Landlord’s sole discretion. Landlord
reserves the right to tow immediately upon tenant default.’’ (Emphasis
altered.)
44
At that point in the contempt hearing, the court urged Tartaglia to ‘‘be
mindful of what you’re saying.’’ Tartaglia replied, ‘‘Your Honor, I’m very
mindful of what I’m saying here.’’
45
Without offering any citation to authority or legal analysis, the defendant
baldly asserts on the thirty-fifth and final page of its principal appellate brief
that the court failed to find that the defendant’s violation of the court order
was wilful. Apart from the patent inadequacy of that briefing, we are mindful
that ‘‘our appellate courts do not presume error on the part of the trial
court. . . . Rather, we presume that the trial court, in rendering its judgment
. . . undertook the proper analysis of the law and the facts.’’ (Citations
omitted; internal quotation marks omitted.) Brett Stone Painting & Mainte-
nance, LLC v. New England Bank, 143 Conn. App. 671, 681, 72 A.3d 1121
(2013); see also State v. Milner, 325 Conn. 1, 13, 155 A.3d 730 (2017) (‘‘the
trial court’s ruling is entitled to the reasonable presumption that it is correct
unless the party challenging the ruling has satisfied its burden demonstrating
the contrary’’ [internal quotation marks omitted]). Absent an indication to
the contrary, we therefore ‘‘must assume [that] the court acted property.’’
Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230
Conn. 764, 774, 646 A.2d 790 (1994). Read and reasonably interpreted as a
whole, we can only construe the court’s memorandum of decision as one
containing the requisite finding of wilfulness on the part of the defendant.
Although not expressly stated, such a finding plainly emanates from the
court’s decision. See RBC Nice Bearings, Inc. v. SKF USA, Inc., 318 Conn.
737, 753, 123 A.3d 417 (2015) (appellate courts construe ambiguous memo-
randum of decision to support judgment).