Arthur Ogden v. Columbia Zoning Board of Appeals (2013)

CORRECTED MEMORANDUM OF DECISION (Correction to Memorandum of Decision dated July 11, 2013 Correction made was on page 15, line 4 added the word not before sustained

This case is an appeal from a decision of the defendant zoning board of appeals of the town of Columbia, upholding a zoning enforcement officer's cease and desist order against the plaintiff, Arthur E. Ogden, regarding his use of his real property located at 6 Cherry Valley Road (parcel), brought to the Superior Court in the judicial district of Tolland.

This court has carefully reviewed the pleadings and the record, listened to the trial of this matter held on March 28, 2013, and considered the briefs of the parties.

I

FACTS

The record reflects the following factual and procedural background.   The parcel stretches across two zones, with most of the parcel existing within an area zoned for commercial use, and a small portion thereof stretching into an area zoned for residential use.  (Return of Record [ROR], Exhibit [Exh.] 10.b.ix, Recording of Corrected Special Exception in Land Records, 9/15/05.)   Presently, a single-family home and a storage building rest on the parcel.   In 2005, the plaintiff filed applications for a special exception and site plan approval in order to construct the storage building.  (ROR, Exh. 7.a & b, 4/27/05 Applications.)   The applications were approved and recorded on the land records.  (ROR, Exh. 10.ix, 9/15/05 Recording of Corrected Special Exception.)

In May of 2009, Columbia zoning enforcement officer John Valente issued a cease and desists order to the plaintiff providing:  “[Y]ou are hereby ordered and directed within 5 days ․ to discontinue and/or remedy the violations and conditions at ․ 6 Cherry Valley Road ․ [o]wned and operated by you that is in violation of said Zoning Regulations of the Town of Columbia ․ [T]he following conditions presently exist:  Unpermitted use of property as a construction/contractor's yard.   Outside storage of seven (7) bulldozers, backhoes, trailers, excavators, and other construction equipment.   Stockpiling and grading of soil ․ These conditions violate Section 3.1 of the Zoning Regulations of the Town of Columbia.”  (ROR, Exh. 10.a.i, Cease and Desist Order, 5/1/09.)   The first order further provides:  “Your immediate attention to this matter is hereby advised and directed ․ [w]ithin 5 days of receipt of this Order or by Wednesday May 6, 2009, whichever is sooner.   This property is not to be used as a construction yard and/or storage of construction equipment.   All disturbed soils are to be stabilized.   If you wish to legally establish this use, an application under Section 31 of the Commission's Regulations must be submitted.”  (ROR, Exh. 10.a.i.)

In response, in June of 2009, the plaintiff filed applications for a special exception and site plan approval.  (ROR, Exhs. 7.c & d, 6/5/09 Applications.)   The applications sought permission to use the parcel to operate “[a] contractor's/construction yard, wholesale operation and warehousing/distribution and accessory uses customary with and incidental to said uses on the commercially zoned property.   The uses proposed will include the outside storage of vehicles, equipment and trailers and a wholesale operation for the distribution of landscaping materials ․” (ROR, Exh. 7.e, Statement of Use.) This language tracked section 31 of the zoning regulations, which governs commercial and manufacturing districts and requires special authorization to conduct “wholesale operations and warehousing/distribution” and “contractor's and construction offices and yards” within the commercial zone.  (ROR, Exh. 6, Regulations.)   In September of 2009, the applications were approved and the special exception was later recorded on the land records.   (ROR, Exh. 10.b.xiii, 11/17/09 Recording of Special Exception.)

This special exception and site plan called for approximately $80,000 of improvements,¹ more than half of which have been completed.   The exception does not specify a due date for completing the improvements.

Nevertheless, on May 10, 2010, Valente issued a second cease and desist order to the plaintiff, which is the order at issue in this litigation.   The order states:  “[Y]ou are hereby ordered and directed within ten (10) days ․ to discontinue and/or remedy the violations and conditions at 6 Cherry Valley Road ․ [T]he following conditions presently exist:  Unpermitted use of property as a construction/contractor's yard.   These conditions violate Section 3.1 of the Zoning Regulations.²  ․ Your immediate attention to this matter is hereby advised and directed ․ [w]ithin 10(ten) days of receipt of this order;  this property ․ is not to be used as a construction yard and/or for the storage of construction equipment.   All disturbed soils are to be stabilized, all commercial vehicles are to be removed from the site and you must discontinue any use associated with a construction/contractor's yard.   If you wish to legally establish this use you must comply with the conditions of approval and the Columbia Zoning Regulations within ․ 10 days of the date of issuance of this Order and apply for a Certificate of Zoning Compliance before you operate a contractor's and construction offices and yard.”  (ROR, Exh. 10.a.ii, 5/10/10 Cease and Desist Order.)   Valente has since assessed the plaintiff $20,000 in associated fines.

On June 3, 2010, the plaintiff appealed the order to the defendant, which held public hearings regarding the matter on June 24, 2010 (ROR, Exh. 4.a, Transcript), July 22, 2010 (ROR, Exh. 4.b, Transcript), and August 26, 2010 (ROR, Exh. 4.c, Transcript).   On August 26, 2010, the defendant voted to uphold the order.³  (ROR, Exh. 4.c.) The plaintiff commenced this appeal to the Superior Court on September 17, 2010, by service of process on the defendant.   The operative complaint/appeal is the Revised Amended Appeal filed on November 14, 2011.   The Return of Record was filed on December 14, 2011, and an index to a Supplemental Return of Record was filed on January 26, 2012.⁴  A trial was conducted on March 28, 2013.   Other facts are set forth herein as needed.

II

JURISDICTION

Appeals from decisions of a zoning board of appeals to the Superior Court are governed by General Statutes § 8–8, subsection (b) of which provides, in relevant part, “any person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located ․” “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).

A

Aggrievement

“[Both] [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399–400, 920 A.2d 1000 (2007).   “Statutory aggrievement exists by legislative fiat ․ In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).   According to § 8–8(a)(1), “any person owning land ․ that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board” is statutorily aggrieved.

The plaintiff alleges in his appeal that he is the “owner in fee of real property commonly known as 6 Cherry Valley Road in the town of Columbia” and, at trial, he testified that he is the owner of the parcel at issue.  (Trial Transcript [T.T.], p. 4.) In addition, the Return of Record includes voluminous documentation of land records pertaining to ownership of the subject parcel beginning in 1954 (ROR, Exhs.10.b.i-xv, 11.a-n.), all of which the court has reviewed.   In addition, the defendant conceded that the court has adequate evidence to find that the plaintiff is aggrieved.  (T.T., p. 4.) For all of these reasons, the court finds that the plaintiff, as owner of the parcel, is statutorily aggrieved.

B

Timeliness and Service of Process

Section 8–8(b) further provides:  “The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.”  “[P]rocess shall be served in accordance with subdivision (5) of subsection (b) of section 52–57 ․” General Statutes § 8–8(f)(2).  General Statutes § 52–57(b) provides, in relevant part:  “Process in civil actions against the following-described classes of defendants shall be served as follows ․ (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ․”

The record shows that notice of the defendant's August 26, 2010 decision was published in The Chronicle, a newspaper with circulation in Columbia, Connecticut, on September 3, 2010.  (ROR, Exh. 3.b, Notice of Decision.)   On September 17, 2010, the plaintiff commenced this appeal by service of process in compliance with § 8–8.   Therefore, the court determines that this appeal was commenced timely by service of process on the proper party.

III

DISCUSSIONA

The plaintiff seeks a favorable judgment that will implicate two core issues:  his right to continue using his real property and his ability to develop it pursuant to the 2009 special exception.   He argues in his brief ⁵ that the defendant's enforcement efforts against him are unreasonable and illegal on the following grounds:  (1) the defendant abused its discretion by affirming an order that was issued without probable cause;  (2) the defendant abused its discretion by permitting public hearings to be used as a fact-finding expedition and by placing the burden of proof on the plaintiff;  (3) the defendant applied the wrong standard of review;  (4) the defendant was illegally and prejudicially influenced by its chairperson, who predetermined to rule against the plaintiff;  and also by Valente's opinion;  (5) the defendant is barred by municipal estoppel;  (6) the town violated the equal protection clause of the United States Constitution by treating the plaintiff differently—through selective enforcement—than other business owners who are operating without certificates of compliance;  (7) the plaintiff does not use the parcel as a “contractor yard” or “construction yard” and, moreover, these terms are not defined by the regulations and, thus, must be construed in favor of the plaintiff;  and (8) the defendant's decision is not supported by substantial evidence.

In response, the defendant argues:  “[The] legal issue in this case is extraordinarily simple ․ [A] person cannot engage in a special permit use without special permit approval.   If such an approval is issued with conditions that certain site improvements must be completed, the special permit use cannot be commenced until those improvements are completed.”   In a nutshell, at some point, the zoning authority noticed that the plaintiff was operating a contractor's yard without a special permit.   Thereafter, the plaintiff applied for a special permit and associated site plan in order to get authorization to continue his operations, together with his landscape business.   The applications were approved with conditions.   Thereafter, the zoning authority noticed that the plaintiff continued to use the site as a “contractor's yard” without having completed all of the necessary site improvements.   It asserts that the appeal should be dismissed because “[a]mple evidence supports the conclusion that Ogden was using the property as a contractor's yard.”

B

Pursuant to General Statutes § 8–6(a)(1), a board may hear and decide appeals from decisions made by a zoning enforcement officer.  General Statutes § 8–6(a)(1) authorizes a board “[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.”  “[I]t is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an ‘appeal’ de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court.”  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88–89, 626 A.2d 744 (1993).

“An adverse decision by the board may be appealed to the Superior Court under General Statutes § 8–8(b).  The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal ․ It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Citations omitted;  internal quotation marks omitted.)  R & R Pool & Patio v. Zoning Board of Appeals, 257 Conn. 456, 469–70, 778 A.2d 61 (2001).

“Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.”  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).  “[T]he appealing aggrieved party [must] marshal the evidence in the record, and ․ establish that the decision was not reasonably supported by the record.”   (Emphasis in original;  internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 716, 780 A.2d 1 (2001).   “The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  Irwin v. Planning & Zoning Commission, 244 Conn. 619, 629, 711 A.2d 675 (1998).

“The evidence, however, to support any such reason must be substantial.”   (Internal quotation marks omitted.)  DeBeradinis v. Zoning Commission, 228 Conn. 187, 199, 635 A.2d 1220 (1994).  “An administrative agency can find that substantial evidence exists if the administrative record affords a substantial basis of fact for which the fact in issue can be reasonably inferred.”   (Internal quotation marks omitted.)  Vicino v. Zoning Board of Appeals, 28 Conn.App. 500, 505, 611 A.2d 444 (1992).

Here, the defendant issued a formal, official, collective statement of the reasons for its action in a letter of decision to the plaintiff dated August 30, 2010.  (ROR, Exh. 5.a.) Thus, the court's review is limited to the confines of the reasons given by the defendant.

A zoning board of appeals is “an administrative body acting in a quasi-judicial capacity.”  Armstrong v. Zoning Board of Appeals, 158 Conn. 158, 169, 257 A.2d 799 (1969).  “In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.”  Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560–61, 236 A.2d 96 (1967).

“Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny ․ the agency is not entitled to special deference ․ [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.”   Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).

“It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the boards will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing ․ The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings ․ Upon an appeal from the judgment of the trial court, [the Appellate Court will] review the record to see if there is factual support for the board's decision, not for the contentions of the applicant ․” (Citations omitted;  internal quotation marks omitted.)  Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 644, 767 A.2d 131 (2001).

(1)

Valente's Probable Cause

The plaintiff argues that the defendant acted “arbitrarily, capriciously and beyond all bounds of discretion” when it affirmed the order because the cease and desist order was issued without probable cause.   More particularly, he contends that, in 2009, shortly after his special exception was approved, Valente received an inquiry regarding the parcel and, thereafter, he repeatedly advised the zoning commission that the plaintiff was operating a contractor's yard on the parcel without having satisfied the conditions for his special exception.   Valente did so, however, without actually investigating the matter.   Together with the town planner and in excess of his authority, he then demanded from the plaintiff full compliance with the special exception conditions according to time lines that were shorter than those allowed for by the regulations and by General Statutes § 8–3,⁶ which allows a full six years to comply with such conditions.   By April of 2010, the plaintiff had “moved his proposed business and machinery from the property” and was “not running a contractor's/construction yard” at the parcel but, rather, in Windham, and any equipment remaining on the parcel was necessary to complete the conditions.   Nevertheless, on May 10, 2010, Valente issued the cease and desist order anyway, and he did so because of the plaintiff's failure to complete all of the conditions within the shortened time frames.

The plaintiff contends that, at the time Valente issued the order, the only information he possessed was:  “(1) an uncorroborated ‘inquiry’ from an unidentified source regarding the conditions of the property;  (2) letters from the [plaintiff] stating that he had moved his equipment off of the property;  and (3) [Valente's] belief that because the [plaintiff] had construction equipment on the property, he was operating a construction yard.”   Valente “never went on the property to inspect it.” ⁷  In addition, Valente testified to the defendant that (1) he did not conduct an investigation until after he issued the order;  (2) he found it difficult to determine whether the plaintiff was operating a construction yard;  and (3) he specifically conducted an investigation in order to produce evidence for the appeal hearings.   It is the plaintiff's contention that the defendant should not have relied on any of Valente's ex post facto findings when it decided this appeal.

In response, the defendant argues that it is irrelevant whether Valente had probable cause to issue the order because “[w]hat matters is what the zoning board of appeals did based on its record because [it] steps into the shoes of the zoning enforcement officer and effectively becomes the zoning enforcement officer.”  (T.T., p. 19.)   The defendant further contends that the plaintiff began to use the parcel as a construction yard under the mistaken belief that he could do so before completing the conditions.   His use constituted, therefore, a violation of the regulations.   Contrary to the plaintiff's claim, the defendant argues, the time lines Valente issued were enforcement demands meant to correct this violation and not an acceleration of the statutory window of opportunity to complete the conditions.   Here, Valente acted in “his role as an enforcement officer, not as a permitting agent.”  (T.T., p. 21.)

The plaintiff relies on the single case of Bozrah v. Chmurynski, 303 Conn. 676, 36 A.3d 210 (2012), to support his claim that the commission's decision is flawed because Valente lacked probable cause to issue a cease and desist order.   In Bozrah, the defendant landowner refused to allow a zoning enforcement officer to inspect his property for suspected zoning violations.   Accordingly, the town sought an injunction to prevent the defendant from refusing to allow the inspection, which the court granted.   On appeal, the defendant claimed that the court's order violated his fourth amendment right to be free from unreasonable search and seizure, and the Supreme Court agreed.   It held that, because the search was not part of a general sweep but was, rather, a targeted search of the defendant's property, the court should not have issued an order permitting the search in the absence of a showing of probable cause that conditions constituting a violation were present on the property.   The court's discussion of probable cause was not related to whether a cease and desist order was properly issued but, rather, whether the trial court order granting the injunction violated the fourth amendment.   No fourth amendment argument has been raised here.   Thus, the plaintiff's reliance on Bozrah is unavailing.

In turn, the defendant relies on Caserta v. Zoning Board of Appeals, 226 Conn. 80, 626 A.2d 744 (1993), and its progeny to support its claim that “what the zoning enforcement officer did below is irrelevant”;  (T.T., p. 19);  because “[w]hen a zoning board of appeals reviews a decision of a zoning enforcement officer, it hears and decides such appeal de novo.”   The issue before the court in Caserta was:  “When the actions of a zoning enforcement officer are reviewed by a zoning board of appeal, is the proper focus for subsequent judicial review the decision of the zoning enforcement officer or the decision of the zoning board of appeal?”  Id., 81–82.   The court found that “[t]he trial court focused on the wrong body of evidence”;  id., 86;  and it held:  “Although we have never precisely held it to be so, it is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an ‘appeal’ de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court.”  Id., 87–89.   The court pointed out that, while “[i]t is the board's responsibility, pursuant to the statutorily required hearing, to find facts and to apply the pertinent zoning regulations to those facts”;  id., 90;  there is, however, “no statutory requirement that a zoning enforcement officer make and preserve a record regarding his actions.”   Id., 89.   Thus, “[i]t follows from the de novo nature of the board's consideration of the issues decided by the zoning enforcement officer that the trial court, upon a judicial appeal from the board pursuant to General Statutes § 8–8, must focus on the decision of the board and the record before it, because it is that decision and record that are the subject of the appeal under § 8–8.”  Id., 90–91.

Therefore, because the subject of the present appeal is not Valente's decision but, rather, the defendant's decision, the plaintiff's argument is unavailing.   Thus, the appeal is not sustained on this ground.

(2)

Other Abuse of Discretion Claims

Next, the plaintiff argues that the defendant abused its discretion because it permitted the public hearings regarding this matter to be used as a fact-finding expedition and because, at those hearings, it improperly placed the burden of proof on the plaintiff to show that he was not illegally operating a contractor's yard while, at the same time, it relieved the town of its burden to justify the order.   He reiterates his claim that the real issue before the defendant, and the focus of its attention, should have been “a determination as to whether the town had probable cause to issue the [order].”   Thus, he argues, “the [defendant] failed to satisfy its statutorily required duty to review [Valente's order], to investigate the facts surrounding the same and to apply the pertinent zoning regulations to those facts.”

In response, the defendant's counsel stated at trial:  “There's nothing in the record that suggested that the commission misunderstood its role or somehow changed the burden, you know, to the extent that there is a burden of proof ․ Frankly, I haven't seen zoning board of appeals enforcement proceedings law regarding burdens of going forward like there would be in a civil action.   Everything I've seen—you know you put your case on.   It's an administrative proceeding.   It's relatively informal.   Everybody puts their evidence on and the commission evaluates the evidence.”  (T.T., p. 35.)

The court has already determined that the defendant's function was not to determine whether Valente had probable cause to issue the order.   See part IIIB(1) of this decision.   With regard to the purpose of the hearings and who should have borne the burden of proof, the Supreme Court stated in Caserta:  “General Statutes § 8–7 provides that a zoning board of appeals hearing ․ an appeal ‘may reverse or affirm wholly or partly or may modify any order, requirement or decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken ․’ “ Caserta v. Zoning Board of Appeals, supra, 226 Conn. 89.  “Our case law further reinforces the de novo nature of the hearing conducted by the zoning board of appeals.   It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts.”  (Emphasis added.)  Id., 90.  “[U]nder appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing ․ It would be inconsistent with these broad grants of power to the board, and with the concomitant procedural limitations thereon, to envision the board's function as anything less than a de novo determination of the issue before it ․” (Citation omitted;  emphasis added.)  Id. Thus, the purpose of the hearings is to afford the defendant an opportunity to hear all of the evidence that is relevant to the case before it so that it may find facts, apply the law and then effect the decision that should be made in the premises.   Accordingly, the plaintiff's claim to the contrary, that the defendant improperly allowed its hearings to become a fact-finding expedition, is unavailing.   Furthermore, because § 8–7 provides that the defendant may effect any “order, requirement or decision as in its opinion should be made” and that it “shall have all the powers of the officer from whom the appeal has been taken,” neither the plaintiff nor the town bore the proverbial burden of proof in the hearings before the defendant in the sense that a default by one would necessarily result in victory for the other.   This is because the defendant's function was to exercise its discretion and decide afresh what decision should be made in light of all of the evidence, not in light of a burden shifting paradigm.   Therefore, the plaintiff's claim to the contrary is also unavailing.   Thus, the appeal is not sustained on this ground.

(3)

Standard of Review

Next, the plaintiff argues that the defendant applied the wrong standard of review because, pursuant to Caserta v. Zoning Board of Appeals, supra, 226 Conn. 80, the defendant should have applied de novo review but it failed to do so.   He claims that the defendant “failed to satisfy its statutorily required duty to review the [order], to investigate the facts ․ and to apply the pertinent zoning regulations to those facts” because, presumably, there is no way it could have arrived at its conclusion after applying de novo review.   This contention is not supported by the evidence and, in fact, the plaintiff's claims in support of his aforementioned arguments, which are addressed in parts IIIB(1) and (2) of this decision, belie this argument.   Specifically, his claim that the defendant allowed its hearings to be used as “fact finding expeditions” and that it improperly relied on Valente's ex post facto findings undermine this argument.   The transcripts of the defendant's hearings indicate that the defendant focused intensely on the evidence presented to it, that it engaged in rigorous cross examination of the parties before it, and that it deliberated on the merits of the issues before rendering its decision.   The plaintiff has presented no evidence, and the court can find none in the record, to suggest that the defendant failed to perform the duty ascribed to it by § 8–7 to “hold a public hearing on such appeal in accordance with the provisions of section 8–7d.”   Thus, the appeal cannot be sustained on this ground.

(4)

Prejudicial Influence

Next, the plaintiff argues that the defendant was illegally and prejudicially influenced by its chairperson, Narkawicz, and by Valente's “opinion.”   He claims that, from the beginning of the application process, Narkawicz demonstrated prejudice against him and demonstrated that the defendant's decisions were predetermined.   In his brief, the plaintiff directs the court's attention to an exchange between his agent, Charlene Chapdelaine,⁸ and Narkawicz at a June 24, 2010 public hearing, as follows:

“Chairman Narkawicz:  I'm a contractor myself and I find it hard to believe that a guy is gonna take equipment from his yard and he's gonna have it in his yard one day and he's gonna, all of a sudden and it's gonna disappear for a week or two weeks and then it's gonna come back to his yard.

“Darlene Chapdelaine:  And that's what he does.   He does it every day.”  (ROR, Exh. 4.a, pp. 29–30.)

The plaintiff further claims that, when presented with testimony that the plaintiff's equipment was “in another yard,” Narkawicz responded:  “Totally impossible, costs too much money to move large equipment off site and just drop it off somewhere and leave it there for three weeks.   It's not gonna happen.   You're not going to convince this board that that's gonna happen ․ I'm listening, but I'm not believing.”  (ROR, Exh. 4.a, p. 32.)   It is the plaintiff's contention that these exchanges exhibit Narkawicz's “blanket disregard of his objective function” and that he should have recused himself, and his failure to do so is ground for sustaining this appeal.⁹  Finally, the plaintiff does not allege how Valente's opinion might have illegally influenced the defendant, just that it did.

The evidence proffered by the plaintiff does not support his claim.   The transcripts of the defendant's hearings do not contain any evidence to suggest that any of the members of the defendant predetermined their decision to sustain the order or that any of the members of the defendant wrongfully influenced other members.   Rather, the transcripts as a whole reveal that the hearings were lengthy and, as the court has already stated, that the defendant focused intensely on the evidence presented to it, that it engaged in rigorous cross examination of the parties before it, such as the dialogue cited by the plaintiff, and that it deliberated on the merits of the issues before rendering its decision.

Thus, the appeal is not sustained on this ground.

(5)

Equal Protection

Next, the plaintiff claims that the town violated the equal protection clause of the United States Constitution by treating him differently than other business owners.¹⁰  According to the plaintiff, the town selectively enforces its regulations, and at least twenty-one local businesses are permitted to operate without proper permits and/or certificates of zoning compliance because none of them have been issued cease and desist orders.   When his agent stated this allegation at the July 22, 2010 public hearing, the defendant “did not challenge these facts.”   Rather, the defendant ignored the allegation even though it was required to acknowledge that the allegation was “competent evidence entitled to credit.” ¹¹  Because the plaintiff's equal protection rights were violated when the order was enforced and when the testimony of his agent was ignored, he argues his appeal should be sustained.

In an appeal from a decision of a zoning agency, the appealing aggrieved party bears the burden of proof to “marshal the evidence in the record, and ․ establish that the decision was not reasonably supported by the record.”   (Emphasis in original;  internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 716.   The plaintiff has provided no evidence to support his alleged equal protection injuries and the record does not reflect that any proof of his claims was presented to the defendant.   Thus, the appeal is not sustained on this ground.

(6)

Regulatory Interpretation and Substantial Evidence

Next, the plaintiff argues that he does not use the parcel as a “contractor's yard” or “construction yard,” whatever those terms might mean.¹²  He argues ¹³ that because the terms “contractor's yard” and “construction yard” are not defined by the regulations, they must be construed in his favor and that to do otherwise would constitute due process violations under the United States and Connecticut constitutions.¹⁴  Accordingly, he argues, individual board members should not have substituted their personal definitions for these terms, and it was improper for Valente and the chairperson of the defendant to determine that he operated a contractor's yard “on the basis of equipment that was maintained on the property for the purpose of completing conditions of [the] special permit.”

In response, the defendant argues that “[an] illegal contractor's yard was discovered” and that “the yard was being operated.”   In support of this conclusion, the defendant points to the following:  Valente's testimony “inform [ing] the board that [the plaintiff] and his employees leave the site with his equipment to do offsite jobs” and that “workers are meeting there in the morning”;  “photographs showing a white van and a worker at the site in the morning and later that same vehicle at one of [the plaintiff's] construction sites”;  and Valente's testimony that “all of the equipment remained on the site,” “the nine pieces of equipment that were stored on the property were not necessary to do the relatively modest work associated with the site plan,” “the specific kinds of equipment changed over time,” and that the plaintiff “admitted that he was undertaking his business from the site.” ¹⁵  The defendant further points to the town planner's testimony that “pieces of construction equipment were clearly visible from the road” and it directs the court's attention to the plaintiff's admission, through his agent, that he takes equipment to and from the parcel “every day.”   Finally, the defendant concedes that the plaintiff, again through his agent, also testified that the vehicles are shuttled back and forth because he uses them not only for implementing the conditions on the parcel, but also for outside construction projects.   At no time does the defendant offer specific definitions of “contractor's yard” or “construction yard.”

Because the defendant interpreted the regulations and drew conclusions of law, the court's review of the board's interpretation of its regulations is plenary.  Grissler v. Zoning Board of Appeals, 141 Conn.App. 402, 405–06, 62 A.3d 539 (2013).  “When evaluating the validity of a decision of a zoning board ․ the trial court [has] to decide whether the board correctly interpreted the [regulation] and applied it with reasonable discretion to the facts.”  (Internal quotation marks omitted.)  Graff v. Zoning Board of Appeals, 277 Conn. 645, 669, 894 A.2d 285 (2006).

“[A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ [T]herefore ․ deference ․ to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ․ has not previously been subjected to judicial scrutiny [or to] ․ a governmental agency's time-tested interpretation.”  Grissler v. Zoning Board of Appeals, supra, 141 Conn.App. 405–06.

As in Grissler, “[t]he zoning regulation at issue in the present case has not previously been subjected to judicial scrutiny.   Moreover, the board did not indicate that it had applied a time-tested interpretation of the regulation.   Accordingly, [the court] do[es] not defer to the board's construction and exercise[s] plenary review in accordance with ․ well established rules of statutory construction ․ Resolution of this issue requires [the court] to review the relevant town regulations.   Because the interpretation of the regulations presents a question of law, [the court's] review is plenary.”  (Internal quotation marks omitted.)  Grissler v. Zoning Board of Appeals, supra, 141 Conn.App. 406.

“The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation.   Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms ․ The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning ․” Balf Co. v. Planning & Zoning Commission, 79 Conn.App. 626, 636, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003).

“[E]very owner of property located in a town which has adopted zoning is entitled to be able to ascertain, with reasonable certainty, what uses he may legally make of any portion of his property.”  Farrior v. Zoning Board of Appeals, 70 Conn.App. 86, 95, 796 A.2d 1262 (2002).  “In interpreting [a regulation], [the court is] mindful that regulations must be reasonably precise in subject matter and reasonably adequate and sufficient to give both the [board] and those affected by its decision notice of their rights and obligations.”  (Internal quotation marks omitted.)  Grissler v. Zoning Board of Appeals, supra, 141 Conn.App. 406.  “[W]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication ․ [and] doubtful language will be construed against rather than in favor of a [restriction].”  King's Highway Associates v. Planning & Zoning Commission, 114 Conn.App. 509, 526, 969 A.2d 841 (2009).

It is well established that “interpretation [of zoning regulations] is governed by the same principles that apply to the construction of statutes.”   Kraiza v. Planning & Zoning Commission of Hartford, 304 Conn. 447, 453–54, 41 A.3d 258 (2012).  General Statutes § 1–1(a) provides:  “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language;  and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”   Likewise, General Statutes § 1–2z codifies the plain meaning rule of statutory and regulatory construction:  “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”   Finally, as stated in Coyle v. Commissioner of Revenue Services, 142 Conn.App. 198 (2013), the court must proceed with the “presum[ption] that the legislature did not intend to enact meaningless provisions ․ [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.”  Id., 202–03.

Notwithstanding the principle that “doubtful language will be construed against rather than in favor of a [restriction]”;  King's Highway Associates v. Planning & Zoning Commission, supra, 114 Conn.App. 526;  in some circumstances, our Supreme Court has held that ambiguous statutes and regulations do bind landowners.   In Shanahan v. Dept. of Environmental Protection, 305 Conn. 681, 47 A.3d 364 (2012), the plaintiff appealed a decision of the defendant ordering it to remove a newly constructed seawall that was waterward of the high tide line on the ground that the term “high tide line” was unconstitutionally vague.   The court determined that, even if the plaintiff did not know the exact location of the high tide line, he knew that at least part of his seawall fell waterward of it because of “direct evidence of water coming into contact with the seawall.”  Id., 707.   The court observed that the plaintiff had taken “a calculated risk that, notwithstanding his failure to abide by ․ the relevant [planning and review] requirements, he would not suffer negative repercussions.”  Id., 710–11.   Accordingly, the court held that “[a]lthough [the plaintiff] ha[d] identified several imprecisions in the statutory definition of the high tide line, because [his] conduct clearly [came] within the unmistakable core of [General Statutes] § 22a–361 [governing planning and review requirements], he may not challenge the statute because it may be vague as applied to some other hypothetical situation.”  (Emphasis added.)  Id., 711–12.   Thus, under Shanahan, ambiguity will not be construed against a restriction when the provision at issue is not ambiguous as applied to the landowner.

In Graff v. Zoning Board of Appeals, supra, 277 Conn. 645, the court went one step further and afforded a zoning board the discretion to invent and apply ex post facto restrictions, so long as they fell within the ambit of the board's authority to govern “accessory uses.”   There, the plaintiff appealed from the issuance of a cease and desist order regarding the number of pet dogs that could be kept on a residential property after the zoning authority determined that keeping pet dogs was an activity subject to regulation as an accessory use, even though the regulations did not explicitly limit the number of dogs that residents could keep.   At a hearing regarding the matter, the zoning board of appeals heard evidence that the plaintiff was the only resident in town with fourteen dogs, a practice that was, therefore, not “a reasonable and customary use of residential property in the town.”  Id., 648.   Accordingly, it interpreted the regulation and adopted an official resolution that “the keeping of four dogs or less in any household constituted a permissible accessory use of residential property.   Conversely ․ any homeowner keeping more than four dogs would be in violation of the town regulations.”  Id., 651.   On appeal, the plaintiff argued, inter alia, that the regulation regarding accessory uses of residential property was unconstitutionally vague because it was “not sufficiently specific, and as a result, the regulations failed to provide her with adequate notice that the accessory use provisions applied to household pets.”  Id., 672.   The Supreme Court narrowly tailored its decision to accessory use regulations.   It found “[there exists] extensive guidance, both from this court, as well as other jurisdictions and legal treatises, which clarify the meaning of the words used in the regulation's definition of accessory use.   In particular, these sources make it sufficiently clear that it is not anticipated that accessory use provisions will enumerate every conceivable activity that is a permissible accessory use, and that household pets, including dogs, routinely have been construed as potentially limited by accessory use provisions ․ Indeed, due to the impracticality associated with a zoning board drafting a list of activities meant to encompass all possible accessory uses to a residential property within a community, some lack of specificity is required in order to provide the flexibility necessary for future board interpretation.”  (Citation omitted;  emphasis added.)  Id., 674–75.¹⁶  Thus, while the court afforded the zoning authority broad latitude to impose certain ex post facto limits on residents, it limited this broad discretionary authority to the context of accessory uses.   Moreover, in doing so, it upheld a clear elucidation of the board's interpretation, adopted as a resolution, that could be relied on by others in the future.

Notwithstanding the discrete holdings of Shanahan and Graff, other appellate authority attests to the general principles that “regulations must be reasonably precise in subject matter and reasonably adequate and sufficient to give both the [board] and those affected by its decision notice of their rights and obligations”;  Grissler v. Zoning Board of Appeals, supra, 141 Conn.App. 406;  and that “doubtful language will be construed against rather than in favor of a [restriction].”  King's Highway Associates v. Planning & Zoning Commission, supra, 114 Conn.App. 526.   In Smith Bros. Woodland Management, LLC v. Planning & Zoning Commission, 88 Conn.App. 79, 868 A.2d 749 (2005), the local zoning commission appealed a decision of the trial court after it sustained the plaintiff's appeal from a determination of the commission that its mulch processing operation was not permitted because the mulch was not “made principally from previously prepared materials” as required by the regulations.  Id., 86.   The Appellate Court construed the regulation at issue and reasoned that because “wood and bark are made ready beforehand for use as landscape mulch when the plaintiff sorts, cuts and grinds them ․ they are previously prepared materials.”  Id., 87.   In affirming the decision of the trial court, the Appellate Court reasoned:  “Although the previous preparation here may be crude, there is no explanation or elucidation in the regulation of the extent to which the materials must be prepared, so we must construe it against a finding of a restriction on the plaintiff's use of its land.”  (Emphasis added.)  Id.

In Ghent v. Planning Commission, 219 Conn. 511, 594 A.2d 5 (1991), the local zoning commission appealed a decision of the trial court after it sustained the plaintiff's appeal from a determination of the commission regarding a subdivision application.   The Appellate Court sustained the trial court's decision after it found that certain provisions of the regulations were “totally void of standards to measure the conditions under which a waiver of ․ road length limitation[s] would be appropriate.”  Id., 519.   More particularly, the court held that the regulation at issue was “so vague and imprecise that neither the commission nor the public [was] fairly apprised of the circumstances under which a [certain kind of] street would be permitted.”   (Emphasis added.)  Id., 518.   It explained:  “Vague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions.   Adequate, fixed and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the rights of property owners, which would otherwise be a purely arbitrary choice of the commission;  such a delegation of arbitrary power is invalid ․ The subdivision regulations upon which the commission, acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature, and must conform to the principle that a regulation, like a statute, cannot be too general in its terms ․ The test of a permissible subdivision regulation is whether the criteria contained in the commission's regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations ․ Although some of the standards may be general in their terms, they ․ [must be] reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases ․ The regulations in this instance do not meet these standards.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Id., 517–18.

Here, § 31 of the regulations provides that, within the commercial district, use of land for “contractor's and construction ․ yards” is permitted by special exception.   Neither “contractor's yard” nor “construction yard” is defined in the regulations.   Accordingly, the court must interpret the regulation to ascertain the meaning of these terms.   While Webster's Third New International Dictionary does not define the phrases “contractor's yard” or “construction yard,” it does define the individual terms, in relevant part, as follows.  “Yard” means “a small usu[ally] walled and often paved vacant area open to the sky and adjacent to a building ․ an area set aside for a particular business or activity ․ an assembly or storage area.”  Id. “Contractor” means:  “one that performs work ․ or provides supplies on a large scale ․ according to a contractual agreement at a price predetermined by his own calculations ․ one who contracts on predetermined terms to provide labor and materials and to be responsible for the performance of a construction job in accordance with established specifications or plans—called also building contractor.”  (Emphasis in original.)  Id. “Construction” means:  “the act of putting parts together to form a complete and integrated object ․ fabrication.”  Id.

In their broadest sense, the terms “contractor's yard” and “construction yard” could describe most any place under the open sun where there occurs, either frequently or infrequently, “contractor” or “construction” activity, which could describe (1) most any kind of economic activity or (2) most any noneconomic activity related to putting things together.   Nevertheless, it is clear that this is not what is meant by the regulation.  Section 31 lists sixty-five other permissible uses in the commercial and manufacturing zones that are subject to site plan or special exception requirements, and many of them would be encompassed by such a definition.   Thus, if the court were to construe the regulation in this broad manner, it would render these other provisions meaningless, superfluous, void or insignificant.   Such a construction is impermissible if it can be at all avoided.  Coyle v. Commissioner of Revenue Services, supra, 142 Conn.App. 203.   Therefore, the regulation must mean something more specific and, indeed, the members of the defendant seemed to agree that “contractor's yard” is a term of art that means something specific, but they did not articulate any consensus on what that meaning is.

At the defendant's hearings and regular meeting, its members debated what the phrase “contractor's yard” actually means.   In all of their discussion, the members of the defendant did not ever elucidate—or even agree upon—a definition of “contractor's yard.”   Rather, a majority of members simply agreed that, whatever it is that is meant by this term was happening on the parcel.   According to Valente, the plaintiff was operating a contractor's yard because he was “running a construction business” on the parcel.  (Exh. 4.a, June 24, 2010 ZBA Public Hearing.)   Likewise, a transcript of the defendant's meeting of decision indicates that those board members who voted to uphold the order did so because they agreed that the plaintiff was operating a construction business on the parcel, and they reached this conclusion based largely on the presence of construction vehicles parked on the parcel.  (ROR, Exh. 4.c, August 26, 2010 ZBA Regular Meeting.)   Board member Vose stated:  “[T]here's a lot of confusion here in terms of what Mr. Ogden can do down there ․ [Nevertheless] it's abundantly clear ․ that you're operating your business out of there.”  (Exh. 4.c, p. 1.) “[H]e has to meet th[e] conditions ․ [but he] is allowed to have equipment down there as long as he is moving dirt [to meet the conditions].”  (Exh. 4.c, p. 4.) “He can park [the equipment he needs to meet the conditions] outside.   But you know you don't need 14 V–8's, for example, to [do] that work.   To me, that's been the sticky point here is OK, what do you need [to meet the conditions] and think that probably there's been some liberty taken in storing some stuff there.”  (Exh. 4.c, p. 5.) The Chairperson stated:  “I agree ․ Mr. Ogden [is] running his business out of there ․ It's just basically the operation of his construction business that he can't do.”  (Exh. 4.c, pp. 1–2.)  “He can store [however, equipment for meeting the conditions] on the property outside.”  (Exh. 4.c, p. 5.) Board member Savoie disagreed with the others, stating:  “I don't see it as operating a business.   I see it as storing or parking vehicles ․ His construction equipment's got to be parked somewhere when it's not in use.   And I don't ․ have an issue with it.”  (Exh. 4.c, pp. 1–2.)   She asked the other members:  “[Is][t]here a specific regulation in town if I were to buy a bulldozer tomorrow, park it in my backyard, specific regulation that said that I had to get it out of there?”   (Exh. 4.c, p. 5.) The chair responded:  “[T]here's no law, I don't think, in town that says you couldn't park one in the backyard [in a commercial zone].” ¹⁷  (Exh. 4.c, p. 5.) Thus, while individual members of the defendant expressed their personal opinions regarding the matter, the record and the parties' briefs reflect that at no time has the defendant explained or elucidated what it means to operate a contractor's yard.   The problematic result of the defendant's decision is that it remains unclear to the defendant, the plaintiff and, indeed, any owner of commercial property in the town of Columbia, what specific activities constitute the operation of a “contractor's yard” or “construction yard” under § 31 when the property owner is otherwise permitted to use construction equipment on the property.

The plaintiff testified at trial that he lived on the property and carpooled to job sites daily with his employee, who parked his van on the property during the workday and then drove it home in the evenings.  (T.T. p. 40.)   He further testified that he operated a wholesale nursery on the property pursuant to a separate permit granting him permission to do so.¹⁸  (T.T., pp. 5–6.)   Specifically, he explained:  “I have a permit for a nursery.   It started in 2001.   That was the first time I took this up.   It's all part of what my plan was to where I ended up today as far as the construction of this site.   The nursery permit allows you to have construction and farm equipment also on the property ․” (T.T., pp. 5–6.)  “That nursery permit allows me to be on the property with equipment.   So that's not a void item just because they say it is.   They can't just—and it's not like something I ran out and got when they started all of this.   I got one here.   It went back to the 90's, but the latest one I have is 2003.   But in the return of record, there's two of them, and they're just after this one.”  (T.T., p. 41.)

Transcripts of the defendant's hearings support the plaintiff's statements at trial and show that the defendant was aware of the plaintiff's nursery permits.   The plaintiff's agent testified that “[t]he operation ․ was approved ․ for farm and nursery uses.”  (ROR, Exh. 4.a, p. 4.) She stated that, following approval of the plaintiff's application in June of 2009, he struggled to meet the deadlines imposed by Valente because “to have certain things completed [in those time lines] ․ [was] virtually impossible when you're trying to develop a piece of property of this magnitude into a farm and nursery, never mind the fact in your own regulations, it says a certificate is not required ․ It says if it is a farm, nursery, which is excepted from your own regulations.   It's very clear in Section 3.2, no application or certificate is required for a farm, forestry, truck garden, or nursery use having no building or structures in connection with such use.”  (ROR, Exh. 4.a, p. 6.) “[I]t's very clear in your own regulations 3–3.1 [that] ․ no certificate is required for farm, forestry, truck garden, or nursery ․” (ROR, Exh. 4.a, p. 6.)

The transcripts further reflect that on July 22, 2010, Valente presented his findings to the defendant as follows.

“ZEO:  ․ [S]ome of the photos that I took were blown up and this is just to show we had this white van and if you look at all of my inspections, you'll see that the white van is generally there, on June 1, June 2, June 21, June 22, June 23 and [although] I didn't check the registration or the ownership, I believe the white van is operated by one of Mr. Ogden's workers ․ [A] that I was trying to establish ․ by taking pictures of the property was, what vehicles are there and is it still considered a violation.   Here's that dump truck that's ․ been in the front for sale for greater than a year.   The white van is, once again, here and the large dump truck and the small dump truck you can't see, is over here.   Pretty much, the small dump truck and the large dump truck are there most of the time.   There's a screener where Mr. Ogden ․ is ․ screening ․ loam from a couple of the existing topsoil piles ․ I happened to be going to the ․ Rite Shop ․ where Mr. Ogden had contracted, he's working there.   This is the white van.   I think it's pretty much the white van.   At least it was a lot clearer to me when I looked at it than this picture shows.   But this is the white van at that particular job site and here's a front end loader and a couple of Mr. Ogden's workers.   The other gentleman, I believe, spends most of his time in a blue pickup truck which I think Mr. Ogden owns.   This is one of Mr. Ogden's vehicles, that's his dump truck and that's one of his workers and himself and these pictures are taken, these last few pictures are taken at the Rite Shop.

“Chair:  PriceRite.

“ZEO:  PriceRite.

“Town Planner:  There are pictures of Mr. Ogden and his employees doing work on a job site.

“ZEO:  Yeah. And here's the blue pickup.   As I said, the blue pickup had been there and the white van, his dump truck was there on June 30 when I first went by.   And I made subsequent visits there ․ This is July 2. So, basically these pictures and others I have show, that from my perspective, that Mr. Ogden has, is still employing or was still employing a couple guys and they're working or showing up at his property and then leaving and then occupied with him on a job site.   I can't testify to more than that ․ I've indicated what seems to be there every day and maybe because they're in disrepair or he doesn't need them but one's ․ what I would call a large roller that's powered by a diesel engine, I'm assuming.   That's in the same spot its always been and there's a bulldozer next to that in the same spot.   I'm assuming that is hasn't moved.   Then, most times, there appears to be a front end loader and then, like I said, the dump trucks, one large one, one small one, one 6–yard ¹⁹ and I don't know what they call ( ․ inaudible ․ ).  So these inspections went from June 1 through July 22, today, a large dump truck, a small dump truck, a roller, a bulldozer, the screener and, what it looks like, a front end loader.   So, I think that's it as far, that's all I can provide as to whether or not I think Mr. Ogden is continuing to run his business out of there and if having his employees show up there in the morning and then leave from there or maybe they show up and they carpool and it has nothing to do with the business.   On occasions I have seen, you know, the small dump truck leave and, on one occasion the small dump truck and the large dump truck left at the same time, coincidental to me going by.   And that's about it.”  (ROR, Exh. 4.b, July 22, 2010 ZBA Public Hearing, pp. 35–6.)

Without additional guidance, § 31 is not “reasonably precise in subject matter and reasonably adequate and sufficient” to give the defendant and the plaintiff “notice of their rights and responsibilities” as it must.   Grissler v. Zoning Board of Appeals, supra, 141 Conn.App. 406.   The evidence in the record, summarized above, does not constitute substantial evidence demonstrating that the plaintiff was operating a contractor's yard or construction yard.   As noted above and as evidenced by the dissent among members of the defendant, the terms “contractor's yard” and “construction yard” in § 31 are ambiguous as applied to the plaintiff's actions.   Here, the record reveals that the plaintiff was permitted to operate a nursery ²⁰ and, in addition, he was required to use his equipment on the parcel to make improvements in connection with his special exception.   The record does not contain substantial evidence demonstrating that the plaintiff was doing anything more than what he was expressly required to do under the special exception, and what he was permitted to do in connection with his operation of a nursery on the parcel.

Whereas in Shanahan, the provision at issue was not ambiguous as to the owner because “direct evidence” established that the provision at issue clearly applied to the plaintiff's conduct even though it might be ambiguous as applied to a hypothetical situation, the evidence in the record here does not resolve the ambiguity of § 31 as applied to the plaintiff's circumstance.  Graff is equally unhelpful because, while the zoning authority in that case had broad latitude to impose an ex post facto restriction on residents, here, § 31 does not fall within Graff 's narrow application to accessory uses.   In addition, Graff involved a regulatory interpretation that was clearly elucidated in the form of an official resolution, whereas here, there has been no such express interpretation of the regulations by the defendant.

The facts of the present case are akin to those in Grissler where the court found that there was “no explanation or elucidation in the regulation” to provide sufficient guidance regarding its meaning;  Grissler v. Zoning Board of Appeals, supra, 141 Conn.App. 406;  and in Ghent, where the court found that the regulation at issue was “so vague and imprecise that neither the commission nor the public [was] fairly apprised of the circumstances under which [the provision would apply].”  Ghent v. Planning Commission of Waterbury, supra, 219 Conn. 511.

The court is mindful that it must construe § 31's “doubtful language ․ against rather than in favor of a [restriction].”  King's Highway Associates v. Planning & Zoning Commission of North Haven, supra, 114 Conn.App. 526.   As the regulation is ambiguous as applied to the plaintiff's actions and as the record does not contain substantial evidence demonstrating that the plaintiff was unlawfully operating a construction or contractor's yard, the plaintiff's appeal is sustained on this ground.

Klaczak, J.T.R.

FOOTNOTES

FN1. The approval provides “Nature of Special Exception Granted.   Approved the Special Exception for a contractor's yard for storage of vehicles and equipment and to create a wholesale operation for landscaping materials, with the following conditions 1) the applicant extend the street millings top course up to the northeast corner of the storage building, 2) the applicant maintain the buffers as proposed and 3) the proposed hours of operation be limited to 7:00 a.m. to 5:00 p.m. Monday through Friday and 7:00 a.m. to 12:00 p.m. on Saturday extending to all proposed uses but with the general standards of ‘Character’ and ‘Neighborhood’ as outlined in Section 52.6 of the Columbia zoning Regulations and approved the Site Plan Application for a sign and accessory uses to include outside storage of materials and vehicles in accordance with the plans and exhibits submitted with the Special Exception and Site Plan Application of Arthur E. Ogden received June 8, 2009 and as amended during the public hearing, including the revised site plan dated September 28, 2009 at 6 Cherry Valley Road and Route 66, Map 11, Lot 39.”  (ROR, Exh 10.b.x.iii.).  FN1. The approval provides “Nature of Special Exception Granted.   Approved the Special Exception for a contractor's yard for storage of vehicles and equipment and to create a wholesale operation for landscaping materials, with the following conditions 1) the applicant extend the street millings top course up to the northeast corner of the storage building, 2) the applicant maintain the buffers as proposed and 3) the proposed hours of operation be limited to 7:00 a.m. to 5:00 p.m. Monday through Friday and 7:00 a.m. to 12:00 p.m. on Saturday extending to all proposed uses but with the general standards of ‘Character’ and ‘Neighborhood’ as outlined in Section 52.6 of the Columbia zoning Regulations and approved the Site Plan Application for a sign and accessory uses to include outside storage of materials and vehicles in accordance with the plans and exhibits submitted with the Special Exception and Site Plan Application of Arthur E. Ogden received June 8, 2009 and as amended during the public hearing, including the revised site plan dated September 28, 2009 at 6 Cherry Valley Road and Route 66, Map 11, Lot 39.”  (ROR, Exh 10.b.x.iii.)

FN2. Section 3.1 of the Regulations provides, in relevant part “No land ․ shall be used or occupied, or changed in use, until an APPLICATION FOR CERTIFICATE OF ZONING COMPLIANCE therefor has been approved by the Zoning Enforcement Officer and until a CERTIFICATE OF ZONING COMPLIANCE therefor has been issued by the Zoning Enforcement Officer certifying conformity with these regulations.”  (ROR, Exh. 6.).  FN2. Section 3.1 of the Regulations provides, in relevant part “No land ․ shall be used or occupied, or changed in use, until an APPLICATION FOR CERTIFICATE OF ZONING COMPLIANCE therefor has been approved by the Zoning Enforcement Officer and until a CERTIFICATE OF ZONING COMPLIANCE therefor has been issued by the Zoning Enforcement Officer certifying conformity with these regulations.”  (ROR, Exh. 6.)

FN3. The defendant's notice of decision states “DENIED the application of Arthur E. Ogden regarding the appeal of the decision of the Zoning Enforcement Officer to issue a Cease and Desist Order for the operation of a contractor's yard at 6 Cherry Valley Road and Route 66 ․ Denial is based on Section 3.1 (Certificate of zoning Compliance) of the Columbia Zoning Regulations requiring ‘No land, building or other structure, or part thereof, shall be used or occupied, or changed in use, until an APPLICATION FOR CERTIFICATE OF ZONING COMPLIANCE thereof has been approved by the Zoning Enforcement Officer certifying conformity with these regulations.’   The records showed that Arthur E. Ogden was operating a contractor's yard at 6 Cherry Valley Road and Route 66 prior to receiving a Certificate of Zoning Compliance.”  (ROR, Exh. 5.a, 8/30/2010 Letter of Decision.).  FN3. The defendant's notice of decision states “DENIED the application of Arthur E. Ogden regarding the appeal of the decision of the Zoning Enforcement Officer to issue a Cease and Desist Order for the operation of a contractor's yard at 6 Cherry Valley Road and Route 66 ․ Denial is based on Section 3.1 (Certificate of zoning Compliance) of the Columbia Zoning Regulations requiring ‘No land, building or other structure, or part thereof, shall be used or occupied, or changed in use, until an APPLICATION FOR CERTIFICATE OF ZONING COMPLIANCE thereof has been approved by the Zoning Enforcement Officer certifying conformity with these regulations.’   The records showed that Arthur E. Ogden was operating a contractor's yard at 6 Cherry Valley Road and Route 66 prior to receiving a Certificate of Zoning Compliance.”  (ROR, Exh. 5.a, 8/30/2010 Letter of Decision.)

FN4. Documents cited in the supplemented index were not filed with the court..  FN4. Documents cited in the supplemented index were not filed with the court.

FN5. The plaintiff's grounds for appeal have evolved substantially since this litigation commenced.   In his appeal, the plaintiff alleged that the decision of the defendant was illegal, arbitrary and an abuse of discretion for one or more of the following reasons:  (1) the special exception did not require that site plan improvements be completed by certain date;  (2) he is entitled to continue using his property even while the site plan is only partially complete, and so the order conflicts with state statutes and local zoning regulations;  (3) the defendant lacks authority to supersede statutory and regulatory time limits established for site plan completion;  (4) by enforcing the order, the defendant has denied the plaintiff his statutory and regulatory rights;  (5) enforcement of the order creates a illegal double standard;  (6) the defendant did not apply the proper standard of review—de novo review—when making its determination;  (7) the defendant predetermined that it would uphold the order regardless of the evidence presented;  (8) the defendant's determination is not supported by sufficient evidence in the record;  (9) the defendant's determination was based, rather, on evidence “outside the public hearings”;  (10) the plaintiff has a vested right in use of his land;  and (11) the defendant's decision amounts to an unconstitutional taking of property in contravention of the federal and state constitutions.“Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided.”   Cybulski v. Planning & Zoning Commission, 43 Conn.App 105, 109 n.3, 682 A 2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).   Likewise, “[t]he allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties ․ It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.”  Local 84 v. Francis, 138 Conn.App. 77, 83 n.5, 51 A.3d 401 (2012).After careful examination, the court finds that each of the grounds briefed by the plaintiff has a genesis in the appeal, with the exception of his municipal estoppel claim.   Therefore, the court will address all of the claims, as briefed, except for the claim for municipal estoppel..  FN5. The plaintiff's grounds for appeal have evolved substantially since this litigation commenced.   In his appeal, the plaintiff alleged that the decision of the defendant was illegal, arbitrary and an abuse of discretion for one or more of the following reasons:  (1) the special exception did not require that site plan improvements be completed by certain date;  (2) he is entitled to continue using his property even while the site plan is only partially complete, and so the order conflicts with state statutes and local zoning regulations;  (3) the defendant lacks authority to supersede statutory and regulatory time limits established for site plan completion;  (4) by enforcing the order, the defendant has denied the plaintiff his statutory and regulatory rights;  (5) enforcement of the order creates a illegal double standard;  (6) the defendant did not apply the proper standard of review—de novo review—when making its determination;  (7) the defendant predetermined that it would uphold the order regardless of the evidence presented;  (8) the defendant's determination is not supported by sufficient evidence in the record;  (9) the defendant's determination was based, rather, on evidence “outside the public hearings”;  (10) the plaintiff has a vested right in use of his land;  and (11) the defendant's decision amounts to an unconstitutional taking of property in contravention of the federal and state constitutions.“Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided.”   Cybulski v. Planning & Zoning Commission, 43 Conn.App 105, 109 n.3, 682 A 2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).   Likewise, “[t]he allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties ․ It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.”  Local 84 v. Francis, 138 Conn.App. 77, 83 n.5, 51 A.3d 401 (2012).After careful examination, the court finds that each of the grounds briefed by the plaintiff has a genesis in the appeal, with the exception of his municipal estoppel claim.   Therefore, the court will address all of the claims, as briefed, except for the claim for municipal estoppel.

FN6. Public Acts 2009, No 09–181, § 1, effective July 2, 2009 and codified at General Statutes (Rev. to 2009) § 8–3(m) provides:  “Notwithstanding the provisions of this section, any site plan approval made under this section during the period from July 1, 2006, to July 1, 2009, inclusive, except an approval made under subsection (j) of this section, shall expire not less than six years after the date of such approval and the commission may grant one or more extensions of time to complete all or part of the work in connection with such site plan, provided no approval, including all extensions, shall be valid for more than eleven years from the date the site plan was approved.”Because the plaintiff's site plan was not approved until September of 2009, it is governed by Public Acts 2011, No 11–5, § 1, effective May 9, 2011 and codified at General Statutes (Rev. to 2011) § 8–3(m), which provides, in relevant part:  “Notwithstanding the provisions of this section, any site plan approval made under this section prior to July 1, 2011, that has not expired prior to the effective date of this section, except an approval made under subsection (j) of this section, shall expire not less than nine years after the date of such approval and the commission may grant one or more extensions of time to complete all or part of the work in connection with such site plan, provided no approval, including all extensions, shall be valid for more than fourteen years from the date the site plan was approved.”.  FN6. Public Acts 2009, No 09–181, § 1, effective July 2, 2009 and codified at General Statutes (Rev. to 2009) § 8–3(m) provides:  “Notwithstanding the provisions of this section, any site plan approval made under this section during the period from July 1, 2006, to July 1, 2009, inclusive, except an approval made under subsection (j) of this section, shall expire not less than six years after the date of such approval and the commission may grant one or more extensions of time to complete all or part of the work in connection with such site plan, provided no approval, including all extensions, shall be valid for more than eleven years from the date the site plan was approved.”Because the plaintiff's site plan was not approved until September of 2009, it is governed by Public Acts 2011, No 11–5, § 1, effective May 9, 2011 and codified at General Statutes (Rev. to 2011) § 8–3(m), which provides, in relevant part:  “Notwithstanding the provisions of this section, any site plan approval made under this section prior to July 1, 2011, that has not expired prior to the effective date of this section, except an approval made under subsection (j) of this section, shall expire not less than nine years after the date of such approval and the commission may grant one or more extensions of time to complete all or part of the work in connection with such site plan, provided no approval, including all extensions, shall be valid for more than fourteen years from the date the site plan was approved.”

FN7. This statement conflicts with the plaintiff's representation to the court that after Valente learned of Bozrah v. Chmurynski, 303 Conn. 676, 36 A.3d 210 (2012), “all of a sudden he wouldn't come back on my property.   Up to that point, he was trespassing all over it.   He actually entered a closed building, the storage building.   My helper and I were in there working.   He opens it and walks in and hands me a cease and desist.   But then in 2010, all of a sudden he makes statements like, ‘well, I never went on his property.   It was always from the road.’  “ (T.T., p. 9.).  FN7. This statement conflicts with the plaintiff's representation to the court that after Valente learned of Bozrah v. Chmurynski, 303 Conn. 676, 36 A.3d 210 (2012), “all of a sudden he wouldn't come back on my property.   Up to that point, he was trespassing all over it.   He actually entered a closed building, the storage building.   My helper and I were in there working.   He opens it and walks in and hands me a cease and desist.   But then in 2010, all of a sudden he makes statements like, ‘well, I never went on his property.   It was always from the road.’  “ (T.T., p. 9.)

FN8. Apparently, for some period of time during the application and agency appeal process, while he was not represented by counsel, the plaintiff appointed one Darlene Chapdelaine to act as his “agent.”.  FN8. Apparently, for some period of time during the application and agency appeal process, while he was not represented by counsel, the plaintiff appointed one Darlene Chapdelaine to act as his “agent.”

FN9. The plaintiff relies on Anderson v. Zoning Commission, 157 Conn. 285, 290–91, 253 A.2d 16 (1968) (board member with personal interest, including bias or prejudice, must recuse himself), Masi v. Planning & Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 09 4018313 (December 3, 2010, Pellegrino, J.T.R.) (commissioner should have recused himself from hearing involving father in law), and Limestone Business Park, LLC v. Inland Wetlands & Watercourses Commission, Superior Court, judicial district of New Britain, Docket No CV 07 4012851 (October 30, 2007, Cohn, J.) (44 Conn. L. Rptr. 399) (predetermination weakens public confidence and wrongfully influences board)..  FN9. The plaintiff relies on Anderson v. Zoning Commission, 157 Conn. 285, 290–91, 253 A.2d 16 (1968) (board member with personal interest, including bias or prejudice, must recuse himself), Masi v. Planning & Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 09 4018313 (December 3, 2010, Pellegrino, J.T.R.) (commissioner should have recused himself from hearing involving father in law), and Limestone Business Park, LLC v. Inland Wetlands & Watercourses Commission, Superior Court, judicial district of New Britain, Docket No CV 07 4012851 (October 30, 2007, Cohn, J.) (44 Conn. L. Rptr. 399) (predetermination weakens public confidence and wrongfully influences board).

FN10. The plaintiff relies on Fillion v. Hannon, 106 Conn.App. 745, 943 A.2d 528 (2008)..  FN10. The plaintiff relies on Fillion v. Hannon, 106 Conn.App. 745, 943 A.2d 528 (2008).

FN11. The plaintiff relies on Loring v. Planning & Zoning Commission, 287 Conn 746, 757, 950 A.2d 494 (2008) (commission required to credit applicant's counsel's unsworn testimony)..  FN11. The plaintiff relies on Loring v. Planning & Zoning Commission, 287 Conn 746, 757, 950 A.2d 494 (2008) (commission required to credit applicant's counsel's unsworn testimony).

FN12. As noted above, these terms are used interchangeably throughout the record.   See footnote 4..  FN12. As noted above, these terms are used interchangeably throughout the record.   See footnote 4.

FN13. In support of his argument, the plaintiff cites Smith Bros. Woodland Management, LLC v. Planning & Zoning Commission, 88 Conn.App. 79, 868 A.2d 749 (2005) (affirming trial court and determining vague regulation must be construed against finding restriction on land), Balf Co. v. Planning & Zoning Commission, 79 Conn.App. 626, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003) (affirming trial court interpretation of regulations in favor of property owner), and Ghent v. Planning Commission, 219 Conn. 511, 594 A.2d 5 (1991) (affirming trial court determination that regulations were “totally void of standards to measure [certain] conditions”).   He also cites Gangemi v. Zoning Board of Appeals, 54 Conn.App. 559, 736 A.2d 167 (1999), rev'd, 255 Conn. 143, 763 A.2d 1011 (2001), a case that is not on point and was ultimately reversed..  FN13. In support of his argument, the plaintiff cites Smith Bros. Woodland Management, LLC v. Planning & Zoning Commission, 88 Conn.App. 79, 868 A.2d 749 (2005) (affirming trial court and determining vague regulation must be construed against finding restriction on land), Balf Co. v. Planning & Zoning Commission, 79 Conn.App. 626, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003) (affirming trial court interpretation of regulations in favor of property owner), and Ghent v. Planning Commission, 219 Conn. 511, 594 A.2d 5 (1991) (affirming trial court determination that regulations were “totally void of standards to measure [certain] conditions”).   He also cites Gangemi v. Zoning Board of Appeals, 54 Conn.App. 559, 736 A.2d 167 (1999), rev'd, 255 Conn. 143, 763 A.2d 1011 (2001), a case that is not on point and was ultimately reversed.

FN14. Although the plaintiff argues that the lack of definitions for the terms “contractor's yard” and “construction yard” renders the regulation vague, he does not argue that the regulations are void for vagueness.   Rather, he argues that “if the zoning regulations are vague, they must be construed in [his] favor.”.  FN14. Although the plaintiff argues that the lack of definitions for the terms “contractor's yard” and “construction yard” renders the regulation vague, he does not argue that the regulations are void for vagueness.   Rather, he argues that “if the zoning regulations are vague, they must be construed in [his] favor.”

FN15. In support of these contentions, the defendant cites “Id.” which, in the context of its brief is ROR, Exh. 7e, Special Exception/Site Plan Application (including Statement of Use), 6/5/09.   The defendant likely intended to cite ROR, Exh. 4a, June 24, 2010 ZBA Public Hearing..  FN15. In support of these contentions, the defendant cites “Id.” which, in the context of its brief is ROR, Exh. 7e, Special Exception/Site Plan Application (including Statement of Use), 6/5/09.   The defendant likely intended to cite ROR, Exh. 4a, June 24, 2010 ZBA Public Hearing.

FN16. In a concurring decision, Justice Katz expressed that, while she agreed with the legal conclusions of the majority, she felt concern with the outcome of this holding.   She noted that “it would seem a wise and more compassionate course of action for [the] zoning authorities to provide a clearer indication of limits they intend to enforce with respect to household pets.”  Id., 681..  FN16. In a concurring decision, Justice Katz expressed that, while she agreed with the legal conclusions of the majority, she felt concern with the outcome of this holding.   She noted that “it would seem a wise and more compassionate course of action for [the] zoning authorities to provide a clearer indication of limits they intend to enforce with respect to household pets.”  Id., 681.

FN17. Indeed, while the regulations do regulate “parking garages” within the commercial zone, they do not regulate parking lots, parking yards, or any other kind of parking accommodation, within the commercial zone.  (ROR, Exh 6.).  FN17. Indeed, while the regulations do regulate “parking garages” within the commercial zone, they do not regulate parking lots, parking yards, or any other kind of parking accommodation, within the commercial zone.  (ROR, Exh 6.)

FN18. Nurseries are governed by § 3 of the regulations, which provides, in relevant part “No land shall be used or occupied, or changed in use, until an APPLICATION FOR CERTIFICATE OF ZONING COMPLIANCE therefor has been approved by the Zoning Enforcement Officer and until a CERTIFICATE OF ZONING COMPLIANCE therefor has been issued by the Zoning Enforcement Officer certifying conformity with these regulations.   No APPLICATION or CERTIFICATE, however, is required for a farm, forestry, truck garden or nursery use having no building or other structure in connection with such use.”  (Emphasis added.)   Thus, under § 3, the plaintiff would be free to operate a nursery without obtaining a certificate of compliance as he normally would for other activities in the commercial zone..  FN18. Nurseries are governed by § 3 of the regulations, which provides, in relevant part “No land shall be used or occupied, or changed in use, until an APPLICATION FOR CERTIFICATE OF ZONING COMPLIANCE therefor has been approved by the Zoning Enforcement Officer and until a CERTIFICATE OF ZONING COMPLIANCE therefor has been issued by the Zoning Enforcement Officer certifying conformity with these regulations.   No APPLICATION or CERTIFICATE, however, is required for a farm, forestry, truck garden or nursery use having no building or other structure in connection with such use.”  (Emphasis added.)   Thus, under § 3, the plaintiff would be free to operate a nursery without obtaining a certificate of compliance as he normally would for other activities in the commercial zone.

FN19. “6–yard” refers to the truck's capacity in cubic yards..  FN19. “6–yard” refers to the truck's capacity in cubic yards.

FN20. Neither of the plaintiff's nursery permits are present in the record.   Nevertheless, pursuant to Practice Book § 14–7B, it is the responsibility of the defendant to supply the court with the record, which includes “any and all documents, transcripts, exhibits, plans, minutes, agendas, correspondence, or other materials ․ which are part of the return of record described in General Statutes § 8–8(k).”  As stated at the outset, the defendant filed the Return of Record on December 14, 2011.   Subsequently, it filed an index for a Supplemental Return of Record, entitled “Certified List of Papers of Record” on January 26, 2012.   The index states “[T]he plaintiff has asserted that the record should be supplemented with additional documents.   After conferring and reaching agreement on the documents to be considered as papers of record, the following is the certified list of the full record of the proceeding of the ZBA upon which this appeal is predicated ․” The index lists, inter alia, the following additional documents:  Item 12.s Nursery Inspection and Registration Certificate # 264 issued 8/1/2011, and Item 12.t Nursery Inspection and Registration Certificate # 264 issued 2006.   Neither of these documents, and in fact none of the forty-four additional documents listed in the supplemental index were filed with the court.The index filed by the defendant provides adequate support for the plaintiff's testimony, which the defendant does not dispute, that he had a permit to operate a nursery on the parcel..  FN20. Neither of the plaintiff's nursery permits are present in the record.   Nevertheless, pursuant to Practice Book § 14–7B, it is the responsibility of the defendant to supply the court with the record, which includes “any and all documents, transcripts, exhibits, plans, minutes, agendas, correspondence, or other materials ․ which are part of the return of record described in General Statutes § 8–8(k).”  As stated at the outset, the defendant filed the Return of Record on December 14, 2011.   Subsequently, it filed an index for a Supplemental Return of Record, entitled “Certified List of Papers of Record” on January 26, 2012.   The index states “[T]he plaintiff has asserted that the record should be supplemented with additional documents.   After conferring and reaching agreement on the documents to be considered as papers of record, the following is the certified list of the full record of the proceeding of the ZBA upon which this appeal is predicated ․” The index lists, inter alia, the following additional documents:  Item 12.s Nursery Inspection and Registration Certificate # 264 issued 8/1/2011, and Item 12.t Nursery Inspection and Registration Certificate # 264 issued 2006.   Neither of these documents, and in fact none of the forty-four additional documents listed in the supplemental index were filed with the court.The index filed by the defendant provides adequate support for the plaintiff's testimony, which the defendant does not dispute, that he had a permit to operate a nursery on the parcel.

Klaczak, Lawrence C., J.T.R.